Usefully Employed

In the recent case of Harris v NKL Automotive the Employment Appeal Tribunal had to decide whether or not a Rastafarian chauffeur, Mr Harris, had been discriminated against when he was told that his hair was too untidy for his job. Mr Harris made a number of claims, one of which was that given his religious beliefs required him to wear dreadlocks, the company’s policy requiring tidy hair was detrimental to Rastafarians. In this case he was unsuccessful at proving this, but had the company’s policy been so bold as to say “Dreadlocks are unacceptable” he may have had a very good case indeed.

This is a good example of indirect discrimination, and it seems worthwhile to describe the difference between direct discrimination and indirect discrimination. You can bring a discrimination claim based on (put simply):

• Race / national origins;
• Sex / married status;
• Disability;
• Sexual orientation;
• Religion / belief;
• Age.

To a lesser degree, there are some others, but they’re for another day. Direct discrimination is where you suffer a detriment at your employer’s hands due to one of the grounds above. You’ve not been promoted because you’re Asian, you’ve not been hired because you’re disabled, you’ve had the sack because you’re gay, and so on. The characteristic doesn’t have to be yours, however, it just has to be the reason behind the detriment. Sack me because my wife is Asian, or my son is gay, and my claim is still a good one (in real life I have neither wife nor son, or why would I be blogging at 11pm?). The action however is done to you personally, rather than just everyone.

Indirect discrimination is what the dreadlocked Harris complained about. That’s where you apply the same rules to everyone (so no direct discrimination), but they have a particularly bad effect on some people because of their characteristics. Let’s have some examples apart from Harris:

• A company that provides security guards on buildings sites states in an advertisement that applicants need to be at least six feet tall.
• A large supermarket states that it will in no circumstances offer part time checkout positions as this causes complications in organising a rota.

Both of these examples could give rise to a juicy tribunal claim for indirect discrimination. No-one is directly discriminating, no-one is being sacked just because they’re black, or disabled, or whatever. However, if your security guards have to be six feet tall, then it stands to reason most of your security guards will be… men. Women tend, presumably for evolutionary convenience, to be shorter than men, and are therefore unlikely to be able to apply to this job. What about the supermarket? Look around your own business. You will probably notice that most of the part-timers are… women of course. Although the breaking down of traditional gender roles remains relentless (my social life would attest to this), the fact is that most of the time women still get pregnant, have babies, then want to come back to work part-time so that they can earn some money but still pick up junior from playgroup and watch kid’s TV. Refuse to hire part-time and you make life much more difficult for women than you do for men.

If this seems a little inflexible, don’t worry. Unlike direct discrimination, indirect discrimination can be justified, and then you can get away with it. This is just common sense: some roles do need to be full time, some jobs can’t be done at any time other than the Sabbath, and you can forbid a Muslim teaching assistant from wearing a veil in class. But if in doubt, tread carefully. The security company and the supermarket above would be on thin ice indeed.