The Central London Employment Tribunal have recently found in Sethi v Elements Personnel Service Ltd that a recruitment agency indirectly discriminated against Mr Sethi for reasons related to his religion. Mr Sethi is an adherent of the Sikh faith.
Reading the judgment it is abundantly clear why that decision was made, it is one of the more clear cut examples of indirect discrimination one will ever see. This may, perhaps, explain why it looks like two different legal representatives ceased to act for the respondent and the respondent decided not to attend the hearing (this is of course just speculation). Because it is so easy to understand how the employer treated Mr Sethi unfairly this is a good case with which to summarise the principle of indirect discrimination.
The fact of the case are that Mr Sethi is an adherent of the Sikh faith, an important element of which is Kesh. Wikipedia describes Kesh as follows:
In Sikhism, Kesh (sometimes Kes) is the practice of allowing one’s hair to grow naturally out of respect for the perfection of God’s creation. The practice is one of The Five Kakaars, the outward symbols ordered by Guru Gobind Singh in 1699 as a means to profess the Sikh faith.
Therefore, as an integral manifestation of Mr Sethi’s religious beliefs is that he had an uncut beard. To give some indication of the centrality of the practice the Wikipedia article goes on to explain that “so important is Kesh that during the persecution of Sikhs under the Mughal Empire, followers were willing to face death rather than shave or cut their hair to disguise themselves.”
Mr Sethi, who by reason of his religion had an uncut beard, applied for work at a recruitment agency which had a number of contracts at high-end London hotels. He attended a training course at the agency where there was an induction that introduced the the standards of behaviour and appearance expected and, as part of that, was informed that no beards were allowed. Mr Sethi explained that a beard was necessary because of his religious beliefs but the employer, after making enquiries with its clients, told him he would not be able to work for them if he decided not to shave off his beard. As a result Mr Sethi made a complaint of indirect discrimination to the employment tribunal and was awarded over £7,000 in compensation.
Indirect discrimination is prohibited under section 19 of the Equality Act 2010. Indirect discrimination occurs when an employer or prospective employer has a policy, practice o rule (called a “Provision, Criterion or Practice”) that they apply to everyone in the same way but it has a more severe impact on people who share a particular characteristic. In the Equality Act there are nine characteristics that are protected. These are age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
If this occurs this does not necessarily mean discrimination (in a legal sense) has occurred the employer can still succeed in defending a case if they can show the reason for the treatment is for a legitimate aim and, in addition, that they have acted in a proportionate way when they try to achieve a implement the legitimate aim.
Applying these stages to the case it is quite easy to see how the treatment Mr Sethi was unlawful discrimination by breaking the case down into the component parts. I have done so because this can be a ‘rough and ready’ checklist of sorts for employees and representatives to apply to identify potential indirect discrimination complaints.
i) There is a protected characteristic.
Indirect only provides protection to those who have a protected characteristic. In Mr Sethi’s case the protected characteristic was religion or belief, specifically his Sikh faith. In this case there were at least two other applicants at the training course who had beards but who were not a Sikh. It was not that people with beards were given protection from being treated unfairly (as is undoubtedly the case). On the facts of the case at least three people were treated unfairly but it is only one of those three individuals, Mr Sethi, who could complain because it was only Mr Sethi whose beard was a consequence of religion or belief.
ii) There is a policy rule or practice.
The second ingredient is that there is a policy, rule or practice that is applied by the employer. This can be very varied and is sometimes very difficult to identify but here the policy is clear: “everyone must be clean shaven.”
iii) The policy, rule or practice is applied (or will be applied) to everyone.
The third ingredient is that the policy, rule or practice is applied to everyone. This means that the policy is neutral, applying to everyone – if it does not then it may mean there is no possible indirect discrimination. If, instead, the employer had a policy that any Sikh workers needed to be clean shaven then the policy would not be neutral. In such an example an indirect discrimination would fail because the rule was not neutral but specific to a certain protected characteristic.
If there is a specific rule that Sikh workers specifically must be clean shaven then Mr Sethi would have had a different claim – one of direct discrimination because the bad treatment would be because of inadvertent consequences of a policy but would be because Mr Sethi was a Sikh.
iv) The application of the rule places the claimant at a disadvantage
The policy placed Mr Sethi at a real disadvantage, if he did not comply he would not get the job. There is no requirement that only those with the protected characteristic are disadvantaged (if they are the only ones affected that again may point to a case of direct discrimination).
In Mr Sethi’s case the two other bearded trainees were placed to the same disadvantage. Although not strictly required in this case the significance of the disadvantage was of course much more severe on Mr Sethi because to obtain the role he had not just shave off his beard but at contrary to a key tenet of his faith.
v) The policy must place other people who share the protected characteristic are put to the same disadvantage.
The policy should not affect the claimant alone but should also be likely to affect other people who share the protected characteristic. In the tribunal’s judgment it was obvious that the no beard policy was much more likely to affect Sikhs. At paragraph 50 the tribunal explained this because the no beards policy “places Sikhs generally, and it placed the Claimant himself, at a particular disadvantage because it is a fundamental tenet of the Sikh faith, to which the Claimant adheres, for a male to have an uncut beard and therefore we accept that a significantly greater proportion of Sikhs will not be able to comply with the PCP than will persons who do not have that characteristic.”
vi) Is there a legitimate reason for the treatment?
The Equality Act does allow for a policy to place people who share a protected characteristic to be placed at a disadvantage if this is a legitimate aim for this. An obvious example is fitness test for firefighters – such a policy would be likely to be for a legitimate aim of ensuring firefighters are able to respond to the physically enduring conditions in a rescue situation, even though such a policy may more harshly affect older workers and some disabled workers.
In Mr Sethi’s case the employer suggested there were three legitimate aims:
- The ‘no beards’ PCP is justified in pursuit of the legitimate aim of
maintaining food hygiene; and/or
- The ‘no beards’ PCP is justified in pursuit of the legitimate aim of
maintaining high standards of appearance; and/or
- The ‘no beards’ PCP is justified in pursuit of the legitimate aim of the
Respondent complying with its clients’ requirements.
In this case the tribunal accepted that each of these were legitimate aims.
vii) Has the employer done everything they could reasonably do to avoid the disadvantage?
Even if there is a legitimate aim the way the employer applies this needs to be “proportionate” which in simple terms means has the employer tried to minimise the effects of the policy, or tried to achieve the aim in other non-discriminatory ways? In this case although the tribunal recognised that the policies were not the agency’s but the clients they were critical that there was no evidence at all that the agency had tried to ask the clients whether it realised how this disadvantaged Sikh workers and ask them to exempt from from the policy. Because they did not do this they did not act proportionately and therefore discriminated against Mr Sethi.
And that, in simple terms, is a brief summary of the main components of an indirect discrimination case. This is a very important provision of discrimination law that can be surprisingly versatile as a tool by which unfair employer practices can be challenged.