A common theme of this Blog over the last few weeks concerns banning certain forms of dress or appearance (Burka bans and horse racing in a hijab published on 1 August 2019).
Imposing a ban in relation to dress codes or appearance can be problematic legally speaking because such an approach could be tantamount to indirect discrimination in terms of Section 19 of the Equality Act 2010.
Several of my previous blogs have addressed the issue of indirect discrimination.
So it was with some interest that I read a story recently about Burger King’s plans to prevent male staff from wearing beards while working in its restaurants throughout the region of Catalunya/Catalonia in Spain. Immediately, I thought about the legal consequences of such a ban being introduced to UK Burger King outlets. The test for indirect discrimination is whether a provision, criterion or policy (PCP) imposed by an organisation is likely to have a disproportionately adverse effect on certain groups of individuals who possess a characteristic protected by law (in the UK, we are primarily talking about the Equality Act).
Unsurprisingly, this attempt to impose a blanket ban on Burger King’s male employees fell foul of the Spanish Constitution’s provisions on equality. I would be prepared to stick my neck out and argue that a similar result would almost certainly be replicated in the UK had Burger King attempted to introduce such a ban. I wasn’t really surprised by this outcome because Spain, as an EU member state, has very similar equality and discrimination laws to the UK. In fact, the current concept of indirect discrimination in the Equality Act 2010 is derived from EU Law.
So, who might be affected if an employer implements a blanket ban on the wearing of beards in the work place? Quite a lot of male employees as it turns out, for example, very religious and observant Jews, Muslims and Sikhs. Furthermore, members of the Russian and Greek Orthodox faith groups and Rastafarians may also face real issues complying with such a requirement imposed by the employer. In short order, such bans may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.
It is always open to an organisation, of course, to argue that dress codes or enforcing strict rules about an individual’s personal appearance can be objectively justified. In the past, banning beards or regulating the length of hairstyles in the work place have been justified successfully by employers or organisations on health and safety grounds i.e. primarily concerning hygiene (see Singh v Rowntree Mackintosh (1979)ICR 554 and Panesar v Nestle Co Ltd IRLR 64 CA).
Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.
Recently, the Royal Air Force (RAF) has significantly relaxed its total ban on male service personnel wearing beards (moustaches were permitted). This change of heart by the RAF has been motivated by the realisation that individuals from ethnic and religious minorities were being actively deterred from applying to join the service because of the ban on beards.
Even the argument that beards are unhygienic is being undermined with Professor Michael Moseley, presenter of the BBC programme “Trust Me I’m a Doctor“, highlighting recent, scientific evidence that clean shaven men represent a greater threat to hygiene than their bearded counterparts.
Links to the stories on Burger King’s attempt to ban the beard, the RAF’s change of policy and whether beards are actually unhygienic can be found below:
In a previous blog (Indirect discrimination? published on 21 February 2019 and updated on 8 July 2019), I discussed the form of prohibited conduct known as indirect discrimination in terms of the Equality Act 2010.
Section 19 of the Equality Act 2010 defines indirect discrimination:
‘A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’
Section 19(2) makes it very clear what it is meant by a discriminatory provision, criterion or practice in relation to a relevant protected characteristic:
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
Employers and service providers (and other organisations) must be particularly wary when they apply a provision, criterion or practice (a PCP) to the general workforce or the general population. It may be the case that, in applying a PCP, that an employer or service provider unwittingly treats certain individuals with a protected characteristic (e.g. women, the disabled, older people, members of a faith group or people from certain racial or ethnic groups) less favourably when compared to other individuals who do not possess this characteristic. It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh  ICR 554).
So, bearing the above in mind, it was with some interest that I saw a story reported by the BBC about a policy imposed by the Welsh Amateur Boxing Authority that all boxers have to be clean shaven in order to participate in matches. This rule is being challenged by Aaron Singh, who is a member of the Sikh community. Singh is claiming that the rule prevents him from boxing. As outward manifestations of their race, religion and culture, many Sikh men will grow beards. Especially religious males in the Sikh community will also wear a Dastar, pagri or pagg (forms of headwear signifying religious and cultural observance). A Kirpan – a ceremonial dagger – will also be carried by many observant Sikh males. Both male and female Sikhs will also choose to wear iron bangles and bracelets (the Kara) which have both religious and cultural significance.
If you are unfamiliar with the Sikh religion, you can access the video below for more information:
You can also find a link to an article below about Sikhs which was originally published in The Independent:
Could this rule be an example of indirect discrimination which particularly impacts (in a very negative way) on members of the Sikh community? In terms of the Equality Act 2010, Sikhs are covered by Sections 9 (Race) and 10 (Religion). Some Sikhs may not be particularly religious (in other words non-practising), but they will be covered by the protected characteristic of Race (see MandlavDowell–Lee  UKHL 7).
Interestingly, as a point of reference, Judaism is also a protected characteristic in terms of Sections 9 and 10 of the Equality Act 2010.
In its defence the Welsh Amateur Boxing Association will be arguing the health and safety card as objective justification. Of the rule. In response, Singh is arguing that the English Amateur Boxing Association dropped its rule demanding that boxers be clean shaven.
It will be interesting to see how this dispute develops.
A link to the story on the BBC News website can be found below:
The above picture may conjure up blissful images of a well deserved retirement, but the reality can be very different for many older employees and workers. Financial necessity and a higher state pension age may mean that many individuals will have to remain in work for much longer than they would like.
In October 2011, the UK Parliament issued a PostNote entitled “An Ageing Workforce” which made the following observations in its introduction:
“Over the next decade, the changing age profile of the workforce will be the most significant development in the UK labour market, as a third of workers will be over 50 by 2020. Employers will be expected to respond to this demographic shift by making work more attractive and feasible for older workers, enabling them to work up to and beyond State Pension Age (SPA) if they are capable.”
Significantly, this PostNote went on to state:
“Within 20 years, nearly a quarter of the UK population will be aged 65 or over. People are now spending an average of 7 years longer in retirement than in the 1970s …”
A link to this PostNote can be found below:
Not much has changed for the better it would seem. Some 7 years later, the above conclusions would also be mirrored by a Report issued by the Women and Equalities Committee of the House of Commons on 17 July 2018 which stated:
“The talents of more than a million people aged over 50 who want to work are being wasted because of discrimination, bias and outdated employment practices. … Government and the Equality and Human Rights Commission (EHRC) are failing to enforce the law on age discrimination and must be clearer that prejudice, unconscious bias and casual ageism in the workplace are all unlawful under the Equality Act 2010.”
A link to the Committee’s Report can be found be found below:
It’s all very well going on about the need for people to work beyond state pension age, but what if older employees and workers find themselves being actively discriminated against by employers? What rights (if any) do they have? Admittedly, age discrimination is not just problem for older people; younger people can often find themselves victims of this type of discrimination (see Hutter v Technische Universität Graz (2009)).
Age discrimination in the news
I was thinking about unlawful age discrimination this week after reading a story on BBC Northern Ireland’s website. It was reported that the Arts Council of Northern Ireland had been sued by its former Chief Executive, Roisin McDonough who was alleging age discrimination. Ms McDonough has now settled her claim with the Arts Council for £12,000. It was alleged by Ms McDonough that the issue centred around the failure by the Arts Council to consider giving her the option of flexible retirement arrangements. She had requested that she be allowed to work 4 days instead of 5 from 1 April 2017. Apparently, this request was never dealt with properly and Ms McDonough was subsequently asked to name a date when she intended to leave her employment.
A link to the BBC Northern Ireland article can be found below:
Roisin McDonough claimed the Arts Council had discriminated against her because of her age.
The Equality Act 2010
It was only with the introduction of the Employment Equality (Age) Regulations 2006 that unjustifiedage discrimination became illegal across the UK. Please note that I have deliberately used the word ‘unjustified’ in my first sentence because there can be situations where discrimination on the grounds of a person’s age can be be quite lawful (more about that later in this blog).
The 2006 Regulations have now been replaced by the Equality Act 2010. For dedicated Brexit followers, these Regulations were introduced because, in 2000, the European Union passed Council Directive 2000/78/EC of 27 November 2000 which established a general framework for equal treatment in employment and occupation. Interestingly, this Directive also spawned new legal protection in relation to a person’s sexual orientation and religion and belief. Admittedly, the scope of the Directive was limited to the area of employment. It did not cover these types of discrimination in relation to the provision of goods and services.
We have since moved on and many of the key principles of the Directive are now to be found in the Equality Act 2010.
Section 5 of the Equality Act states that in relation to the protected characteristic of age:
(1) (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;
(b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.
(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.
It is, therefore, unlawful for employers andservice providers to discriminate against an individual on the grounds of that person’s age. Employers must be particularly careful in relation to recruitment policies and procedures, terms and conditions of employment, promotion and training opportunities and termination of the employment relationship. Practically speaking, this will mean that employers will have to be especially careful when recruiting workers to their organisations.
Any advertisements or recruitment criteria which seem to suggest a preference for one age category over another should be discouraged – unless there is a sound legal reason for this. It’s probably very unwise for recruiters to use phrases like ‘Mature person sought for post’; ‘Dynamic individual preferred’ or ‘Youthful enthusiasm’ or ‘Are you still hungry enough to succeed?’ (see Canadian Imperial Bank of Commerce v Beck 2010; McCoy v James McGregor and Sons Limited and others 2007; and Hutter v Technische Universität Graz (2009)).
That said, there are situations where the law will permit differences in treatment based on a person’s age. The National Minimum Wage Act 1998 and the associated Statutory Regulations, for example, continue to operate meaning that workers can be paid different minimum and living wage rates depending on their age. In situations involving redundancy, those employees with 2 or more years’ continuous service will be entitled to receive a statutory redundancy payment. It is very likely that older employees may have longer service than their younger colleagues and will, therefore, be better off financially under the employer’s redundancy arrangements.
A case where an employer attempted unsuccessfully to justify direct age discrimination occurred in O’Reilly v (1) BBC & (2) Bristol Magazines Ltd (2010) Miriam O’Reilly, a very experienced and well regarded radio and television journalist, lost her job as one of the main presenters of the BBC’s popular Countryfile television programme (which has been broadcasting since 1989 until the present day). Ms O’Reilly was then 51 years of age. This was part of a strategy by the BBC to appeal to a much younger audience. The new presenters who had been recruited to work on the programme were all in their 30s.
Held: by the Employment Tribunal (unanimously) that O’Reilly had been subjected by the BBC to direct age discrimination and that the BBC and Bristol Magazines Ltd had subjected her to age victimisation. Claims for sex discrimination were not proved. The Tribunal was strongly of the opinion that had O’Reilly been 10 or 15 years younger, she had would have been in a strong position to retain her presenting post on the programme. In fact, it was heard during the evidence that the BBC had considered offering Michaela Strachan (a well known television presenter who had guest presented on the show) a permanent presenting job. Strachan was then aged 42 as opposed to O’Reilly who was 51.
Health and safety considerations might seem like a fairly straightforward way of justifying age discrimination in relation to certain jobs which rely on the person displaying a high level of technical competence e.g. an airline pilot, but employers will have to be very careful here that they do not use this issue as a blunt instrument as the Court of Justice of the EU decided in Case C-447/09 Prigge and Others v Lufthansa.
In Prigge, Lufthansa, the German national airline operated a compulsory retirement age of 60 for its pilots. Prigge and a number of other pilots who had either reached or were approaching this age, objected to the policy on the grounds that it was an example of age discrimination. Lufthansa, amongst other things, argued that the policy could be objectively justified on the grounds of health and safety.
Held: by the Court of Justice that Lufthansa’s mandatory retirement age of 60 could not be objectively justified and was not a proportionate means of achieving a legitimate aim. The airline had committed unlawful discrimination on the grounds of age by operating the compulsory retirement age.
For many years, the UK in common with many other EU member states permitted employers to operate compulsory retirement ages. Until 2011, the default UK retirement age for both men and women was 65. This has now been abolished and people have the right to request that they permitted to work on.
As a consequence of major demographic change i.e. a rapidly ageing population in this country, it will be necessary for people to work for longer than previous generations. A person’s entitlement to receive a state and/or occupational pension scheme has been raised to 66 years of age if you intend to retire by October 2020 (and then to age 67 between 2026 and 2028). These projections may still be overly optimistic given the UK’s demographic time bomb and, in 2016, the Independent Review of Retirement Income, chaired by Professor David Blake of Cass Business School, submitted that people would have to work into their seventies in order to avoid hardship and poverty in their old age. This research was also supported by a study by Royal London which suggested a retirement age of 77!
The Court of Justice of the European Union gave cautious approval to the UK’s then default or mandatory retirement age of 65 (see Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (2009)). Compulsory retirement ages set by EU member states were essentially a proportionate means of achieving a legitimate aim i.e. the orderly management of a country’s labour market and the opening up of employment opportunities for younger people.
Having said that, with the abolition of the UK’s default retirement age, employers will still have to be careful how they handle the issue of older employees. Requests to continue working by those individuals in the older age demographic will have to be considered seriously by employers. Employers may be justified in refusing to continue employment if they can demonstrate that an older employee falls short of a basic (objective) standard of mental or physical abilities required to perform the job; or in situations where the law lays down the retirement age. Finally, we should also be aware that younger people can also be the victims of age discrimination.
ACAS Guidance on Age Discrimination
In March 2019, ACAS helpfully produced new guidance on how to prevent age discrimination in the workplace.
Some of the ACAS examples can be found below:
Example 1 – Ordinary direct discrimination (Section 13: Equality Act 2010)
Manager Louise is looking to fill a role which will require the successful applicant to then complete difficult training. She instructs her HR manager to discount her team’s younger members, presuming they will not want the hard work. She also tells HR to discount older members, thinking they will not adapt to the change. Instead she shortlists Bruce and Mikel, believing people in their mid-thirties are more likely to have the necessary blend of ambition and sense of responsibility. Her actions are likely to be discriminatory.
Example 2 – Direct discrimination by association (Section 13: Equality Act 2010)
Senior manager Jurgen decides not to invite employee Sarah and her partner Claude to a business party because Claude is much older than her. Jurgen feels Claude would not fit in with the party mood. This is likely to be discriminatory.
Example 3 – Direct discrimination by perception (Section 13: Equality Act 2010)
Siobhan is turned down for a supervisor’s job because her bosses decide she does not look mature enough for the role. They think she looks about 20. In fact, she is 30. Her bosses’ decision is likely to be discriminatory.
Example 4 – Indirect discrimination (Section 19: Equality Act 2010)
City centre gym manager Esme tells employees she needs two more staff to work on reception. She adds that anyone interested needs to look ‘fit and enthusiastic’ as the gym is trying to encourage more young people to join. Her requirement may indirectly discriminate against older staff unless it can be objectively justified.
Example 5 – Harassment (Section 26: Equality Act 2010)
Sixty-year-old Margaret feels humiliated and undermined at the store where she works because of her age. Despite her extensive experience in retailing and recently gaining a qualification as a visual merchandiser, her manager Darren regularly tells her in front of other staff that she is ‘out of touch’ and that the store needs ‘fresh blood’. Darren’s behaviour is likely to be harassment.
Example 6 – Victimisation (Section 27: Equality Act 2010)
Manager Alan tells apprentice Reyansh he is happy with his progress and performance. Reyansh then feels confident enough to tell Alan that some of the older employees regularly make fun of him because of his age and play pranks such as leaving toys where he’s working. Reyansh wants this to stop. Alan tells Reyansh to toughen up and that the firm has no time for complainers. Some weeks later Alan punishes Reyansh for complaining by cancelling his training course. This is likely to be victimisation.
The ACAS Guidance can be accessed using the link below:
The word segregation has very negative associations and we often think of the American Deep South before the victory of the Civil Rights’ Movement in the 1960s. In more recent times, we think of Apartheid era South Africa and its official policy of segregating the different racial groups.
Segregation on racial grounds would constitute direct discrimination in terms of the Equality Act 2010.
In its code of practice, the Equality and Human Rights Commission has previously used the following example of segregation which would be unlawful:
A British marketing company which employs predominantly British staff recruits Polish nationals and seats them in a separate room nicknamed ‘Little Poland’. The company argues that they have an unofficial policy of seating the Polish staff separately from British staff so that they can speak amongst themselves in their native language without disturbing the staff who speak English. This is segregation, as the company has a deliberate policy of separating staff because of race.
A story (first reported by The Guardian) focused on segregation at a housing development in England. The developers were not prepared to allow housing association tenants on the site to have access to the recreational facilities. Only those individuals who had purchased properties at the development were entitled to make use of them.
On the face of it, this may be another example of the (social) class divide in the UK and no amount of legislation has managed to eradicate this problem. That said, a deliberate policy of segregation as operated by the developers might be capable of legal challenge if it could be demonstrated that the policy was leading to indirect discrimination in connection with a person’s protected characteristics.
I can’t help wondering if the developer carried out an equality impact assessment study before implementing the policy? Indirect discrimination, of course, occurs when an individual or an organisation operates a policy, criterion or practice (PCP) which has a disproportionately adverse effect on a certain group of people.
In a previous Blog (Indirect Discrimination published on 21 February 2019), I discussed this form of discrimination in relation to a story from New York.
It may be the case that a higher proportion of people from minority ethnic groups or non-white British citizens or EU nationals may be tenants of the rented accommodation at the development. We could also have more single parent families living in the rented properties who are headed by a female.
Several of the tenants are looking into the possibility of raising a legal challenge. Although, by the time that the story had gained national publicity, the developer was reconsidering its position.
In July 2019, the UK Government announced plans to introduce legislation in England which would effectively put an end to the practice by developers of having separate entrances and facilities (in effect segregation) for private owners and public sector tenants livingin housing developments.
In Scotland, housing policy falls within the legislative powers of the Scottish Parliament.
A link to the story about the proposed legislation as reported by the BBC can be found below:
In Chapter 7 of Introductory Scots Law, I discuss the concept of indirect discrimination. It is often a difficult concept to grasp for both students and the lay person. Unlike direct discrimination, harassment or victimisation (which can feel very personal and immediate to the victim of unlawful, less favourable treatment), indirect discrimination can perhaps take more subtle forms and is harder to spot. Arguably, an individual who commits an act of indirect discrimination may not be aware that legal consequences arise as a result of their behaviour.
Section 19* of the Equality Act 2010 addresses the issue of indirect discrimination.
Helpfully, the Equality and Human Rights Commission provides guidance on what constitutes indirect discrimination in its Statutory Code of Practice on Employment. Two examples can be found below:
An employer has a ‘no headwear’ policy for its staff. Unless this policy can be objectively justified, this will be indirect discrimination against Sikh men who wear the turban, Muslim women who wear a headscarf and observant Jewish men who wear a skullcap as manifestations of their religion.
Requiring a UK-based qualification, when equivalent qualifications obtained abroad would also meet the requirement for that particular level of knowledge or skill, may lead to indirect discrimination because of race, if the requirement cannot be objectively justified.
The concept of indirect discrimination in Section 19 applies to all of the protected characteristics with the exception of pregnancy and maternity which are specifically addressed elsewhere in the Equality Act 2010 (Sections 17 and 18).
New York, New York …
I got thinking about indirect discrimination again when reading an interesting article on the BBC’s website:
The guidance gives black people the right to wear hairstyles previously deemed “unprofessional”.
Apparently, New York City’s Commission on Human Rights is advising employers and service providers that discrimination on the grounds of a person’s hairstyle could constitute unlawful, less favourable treatment.
It would seem that certain hairstyles which are associated with African Americans e.g. afros, cornrows and locs are at risk of being labelled “unprofessional” and some employers are actively discouraging employees from having these hairstyles.
In the BBC report, the words “disproportionately affected” reared up at me.
Any person who has experience of working in the area of discrimination and equality law here in the UK should immediately spot the relevance of this phrase because it should signal that there is a possibility of indirect discrimination.
Policy, Criterion or Practice (PCP)
Employers and service providers should, therefore, be particularly wary when they apply a provision, criterion or practice (a PCP) to the general workforce or the general population. It may be the case that, in applying a PCP, that an employer or service provider unwittingly treats certain individuals with a protected characteristic (e.g. women, the disabled, older people) less favourably when compared to other individuals who do not possess this characteristic. It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh  ICR 554).
I often say to students that, if they were giving advice to organisations on how best to avoid indirect discrimination (which cannot be legally or objectively justified), they should begin by looking at policies and practices with general application to the workforce or the public. I tell them to think about who do they think can more easily comply with these requirements and who do they think might have more difficulty. In particular, could the PCP have a really negative impact on, for example, women, the disabled or certain religious and ethnic groups?
When we talk about the negative impact of a PCP on a group with protected characteristics, we are not talking about minor inconvenience. We really mean that the PCP has a disproportionately adverse effect on the group in question:
London Underground v Edwards (No 2) (1998) IRLR 364 – changing the shift patterns for all drivers on the London Underground had a disproportionately adverse effect on female employees with childcare responsibilities. This was indirect discrimination on the grounds of sex/gender which could not be objectively or legally justified.
Network Rail Infrastructures Ltd v Gammie  UKEAT 0044 – 08 – 0603 – the refusal by the employer to consider flexible arrangements had a disproportionately adverse effect on female employees with childcare responsibilities. Again, as in the Edwards (above), this was an example of indirect discrimination on grounds of a person’s sex or gender.
Equality Impact Assessments
It might be advisable for the organisation to carry out an equality impact assessment before introducing a PCP e.g. a change to the working day; or a commitment to carry out regular reviews of extant PCPs in order to ensure that they comply with UK equality laws.
A useful link to ACAS guidance on carrying out equality impact assessments can be found below:
An organisation, in undertaking an equality impact assessment, might be well advised to conduct a detailed statistical analysis in order to calculate, for example, how many women or how many people of a particular colour, nationality, race, ethnic or national origin can comply in practice with the requirement imposed by the employer or service provider. If fewer Sikhs, for example, can comply with a PCP, it may be that the employer/service provider has indirectly discriminated against this group with the relevant protected characteristic.
At first glance, the condition or the requirement that the employer or service provider imposes on everyone looks completely harmless. Upon a closer inspection, however, it becomes apparent that, for example, more men than women can comply in practice with the employer’s condition or requirement or that more white people can comply with the requirement or condition than can people from an Afro-Caribbean background.
It is not just the fact that fewer people from a particular gender group or individuals of a particular colour or nationality can comply in practice with the requirement, they suffer an adverse impact because of it i.e. they suffer less favourable treatment.
What if, for example, the employer imposed a requirement that all job applicants had to be at least six feet in height?
Admittedly, there are many tall women, but realistically there are many more tall men than tall women who can comply with this requirement in practice. More women would, therefore, be prevented from applying for this job. In other words, women are denied employment opportunities because the employer has imposed a height restriction.
In situations where an employer imposes ‘desirable’ and ‘essential’ criteria in a job advertisement, the Employment Appeal Tribunal has stated these may be examples of indirect discrimination (see Falkirk Council v Whyte  IRLR 560).
The lesson to be learned?: Monitor your organisation’s policies, criteria and practices carefully and regularly in order to avoid falling into the trap of indirect discrimination. An equality impact assessment is a vital tool to keep yourself on the right side of the law.
In July 2019, California became the first US State to pass a law banning hairstyle discrimination.
Read more about this development by accessing information on the link below to the SkyNews website: