In Mr R Sethi v Elements Personnel Services Ltd [2019] ET 2300234/2018, the Claimant, a practising but unbaptised Sikh, applied for a job with the Respondent: a specialist agency providing temporary staff for the hospitality industry, mainly at five-star hotels. He attended an induction course at which he was asked to sign various documents including the Respondent’s standard Contract for Agency Workers, which included the Respondent’s Code of Conduct. The Code provided, înter alia, that “No beards or goatees are allowed” [21-23]. He explained that he would not be able to shave off his beard for religious reasons [27]. He was subsequently told that

“It would not be worth your while to work with Elements as there wouldn’t be enough shifts to give you … as we are working with 5* Hotels the hotel managers, unfortunately, won’t allow having facial hair due to health and safety/hygiene reasons. If we worked with Hotels at lower star ratings facial hair wouldn’t be as big of an issue” [31].

The Employment Tribunal found that the Element’s Dress Code Policy – specifically the “no beards” requirement – was a provision, criterion or practice (PCP) within the statutory definition [48]. Though it was applied equally to all agency workers, it placed Sikhs generally, and the Claimant himself, at a particular disadvantage because it is a fundamental tenet of the Sikh faith for men to have uncut beards. The claim therefore engaged Article 9 ECHR [48-50].

In principle, maintaining appropriate hygiene was a legitimate aim, but Elements’ policy was not rationally connected to that aim because it was about personal appearance rather than hygiene [52]. Though it was, in principle, a legitimate aim that staff working in the hospitality industry, in particular in five-star hotels, should have high standards of personal appearance, there was

“a significant element of subjectivity as to what constitutes a smart appearance, in particular insofar as concerns facial hair. In another age, beards and/or moustaches might have been considered almost compulsory” [53].

The legitimate aim of maintaining high standards of appearance could be met by requiring a Sikh to maintain his beard in a tidy fashion:

“Given the importance to Sikhs such as the Claimant of not cutting their facial hair, a ‘no beards’ policy is likely to amount in practice to a ‘no Sikhs policy’” [55].

The application of the policy was disproportionate and was not justified by the legitimate aim of maintaining high standards of appearance [55]. Mr Sethi had therefore been indirectly discriminated against, contrary to ss.19 and 39(1)(c) of the Equality Act 2010.

Comment: Katherine Pope, of Bryan Cave Leighton Paisner LLP, suggests in Lexology that the case is a reminder to employers of the importance of considering not just the aim in implementing a PCP, but also the steps taken to achieve it. She also suggests that tribunals are likely to look more closely at steps taken by employers to achieve aims relating to appearance and uniform than at measures that are intended to address genuine health and safety objectives.