Tidy-hair policy does not discriminate against Rastafarians, says EAT

A Rastafarian called J Harris worked as an executive driver for NKL Automotive. When he lost his job, he brought a tribunal claim for direct and indirect discrimination on the grounds of his philosophical beliefs, and also victimisation discrimination. His claims were rejected and he appealed against the finding that there was no indirect discrimination or victimisation discrimination.

The Rastafari movement emerged in Jamaica in the 1930s. Followers believe dreadlocks to be supported by a Nazirite vow that appears in the Bible: "All the days of the vow of his separation there shall no razor come upon his head: until the days be fulfilled, in the which he separateth himself unto the LORD, he shall be holy, and shall let the locks of the hair of his head grow."

The tribunal accepted that Rastafarianism is a philosophical belief, and that it is similar to a religious belief and therefore protected under the Employment Equality (Religion or Belief) Regulations (The Regulations were passed in 2003 and have since been extended to cover philosophical beliefs, whether similar to religious beliefs or not. But they had not been extended at the time when Harris lost his job.)

Harris had been supplied to NKL by an agency. NKL expressed concerns to a Mr Jones, who worked for the agency, that Harris's hair was untidy and that he did not represent the company well. NKL's dress code stated that drivers "should have a smart professional haircut and should ensure hair is tidy".

Harris complained to Mr Jones that he was not getting as much work as other agency drivers and complained that, unlike some other agency workers, he had not been taken on as a full-time employee. He believed he was being discriminated against because of his hair, which he wore in dreadlocks, "in accordance with his Rastafarian beliefs".

The tribunal found that the company "did not object to long hair as such … but they did insist upon a tidy appearance." Harris's hair grew more matted – and the tribunal said that it "must have reached a stage where it was unacceptably untidy in terms of NKL's dress code".

Harris's lawyer said that the requirement to have tidy hair itself is prejudicial to Rastafarians. The EAT disagreed. "That presupposes that [NKL] takes the view that dreadlocked hair is necessarily untidy," it said. "If dreadlocks are compatible with tidy hair, or can be kept in a tidy manner, then the criterion does not in any way discriminate against those with dreadlocks."

The appeal failed and was sent back to the tribunal to consider the question of victimisation discrimination.

Andrea Paxton, an employment law specialist with Pinsent Masons, the law firm behind OUT-LAW.COM, said the case serves as a useful reminder to employers to check both their dress codes and their equal opportunities policies.

"There have been a few cases like this recently and the key for any employer is to ensure that any dress code restrictions are proportionate and for a legitimate purpose," she said. "Business reasons, like the impression given to customers or clientele, can justify insistence upon a certain style of appearance. But such rules are only likely to be justifiable if they are part of a general standard which does not discriminate, either directly or indirectly, against a particular racial or religious group."

Earlier this year, Kirklees Metropolitan Borough Council won a case before the EAT that had been brought by a Muslim teacher, Mrs Azmi, who refused to remove her veil during lessons when male colleagues were present. She lost her claims for direct and indirect discrimination and harassment. She did win a separate claim for victimisation, though, because the employer had failed to deal properly with her grievance.

"In Mrs Azmi's case, the balance to be struck was between providing the best quality of education for children and the manner in which someone wanted to express a religious belief," said Paxton. "Different factors had to be weighed in Mr Harris's case, but the approach was the same, and it's the same thought process that any employer should follow in reviewing a policy."

British Airways ended a ban on employees wearing visible symbols of Christianity in February. It followed a storm of controversy over Heathrow check-in worker Nadia Eweida who was told that she could not wear a small cross unless it was concealed beneath her BA uniform, though Muslim workers were allowed to wear hijabs and Sikh workers could wear turbans.

A BA spokesman told The Times newspaper: “The review concluded that the uniform policy should be amended to allow a lapel-pin symbol of faith, such as a Christian cross or a Star of David, with some flexibility for individuals to wear a symbol of faith on a chain.”