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.”
