Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Employment law solicitor Chris Hadrill takes a look at the provisions of sections 11 and 12 of the Employment Act 1989, and how these interact with the Equality Act 2010

In this post we’re going to have a look at how attempting to force a Sikh to wear a safety helmet in the workplace is potentially discriminatory and, in particular, how the Employment Act 1989 affects the complaint of indirect discrimination under s.19 of the Equality Act 2010. The writing of this post has been inspired by an Employment Tribunal case that I acted in which was recently settled for a large five-figure sum where my client (who is Sikh and wears a turban) was dismissed from his employment for (among other things) his “refusal” to wear a safety helmet on his employer’s construction sites.

Sections 11 and 12 of the Employment Act 1989

Section 11

Section 11 of the Employment Act 1989 stipulates that if  Sikh who is on a construction site is wearing a turban then any requirement to wear a safety helmet (by virtue of any statutory provision or rule of law) does not apply to him. Effectively, section 11 of the Employment Act 1989 waives the obligation of a Sikh to wear a safety helmet on a construction site (whether this construction site is ‘active’ or not).

This exemption was widened earlier this year by section 6 the Deregulation Act 2015 (which came into force on 1 April 2015), which amends sections 11 and 12 of the Employment Act 1989. Under section 6, Sikhs are exempted from having to wear a safety helmet in any workplace, rather than just on a construction site. However, there are certain exceptions stipulated in section 6, which states that Sikhs working in the following occupations are not exempted from wearing a safety helmet:

  • In occupations that involve (to any extent) providing an urgent response to fire, riot or other hazardous situations; and where the Sikh is at the workplace to provide such a response in circumstances where the wearing of a safety helmet is necessary to protect the Sikh from a risk of injury or to receive training in how to provide such a response in circumstances of that kind
  • Members of Her Majesty’s forces or a person providing support to Her Majesty’s forces and is at the workplace

As can be noted from the above, there are still limited exceptions where safety helmets will be required, such as for specific roles in the armed forces and emergency response situations. However, there is a bit of ambiguity regarding the wording of “other hazardous situations” which employers may try and exploit.

Section 12

Section 12 of the Employment Act 1989 has a direct effect on section 19 of the Equality Act 2010, in that it removes the employer’s ability to rely on the defence of “objective justification” if a Claimant proves that there has been prima facie discrimination. Section 12 has also been recently amended to extend it from applying only to construction sites to all workplaces.

Section 12 of the Employment Act 1989 applies if:

  • Any person applies to a Sikh any requirement or condition relating to the wearing by him of a safety helmet while he is at a workplace; and
  • At the time when this requirement or condition is applied that person has no reasonable grounds for believing that the Sikh would not wear a turban at all times when at such a workplace

Section 19 of the Equality Act 2010

Section 19 of the Equality Act 2010 defines indirect discrimination. Under s.19 indirect discrimination occurs where a person (A) applies to another person (B) a practice criterion or provision (“PCP”) which is discriminatory. This PCP is discriminatory where it is applied to all persons but puts persons of a certain protected characteristic at a particular disadvantage to persons who do not possess that protected characteristic, with B also being put to that disadvantage.

With regards to this post, indirect discrimination would occur in the workplace if a Sikh (who wears a turban) was dismissed from his job because he was unable to comply with his employer’s requirement that he wear a safety helmet on construction sites. This would constitute indirect discrimination as:

  • The Sikh (“B”) has a protected characteristic: his religious beliefs
  • The employer (“A”) has put in place a requirement (a “PCP”) that safety helmets must be worn on construction sites
  • This PCP applies to all workers, whether they are Sikh or not
  • The PCP potentially places Sikhs at a particular disadvantage because (as a result of the PCP) they may not, for example, be recruited or they may face dismissal because they wear a turban (and therefore cannot comply with the PCP); and
  • The PCP has put B at that disadvantage as he has been dismissed for his inability to wear a safety helmet on a construction site

As above, if section 12 of the Employment Act 1989 applies then the employer cannot defend a claim through the use of the “objective justification” defence – if a claimant in the Employment Tribunal can utilise this provision then it places them at a distinct advantage in making a claim. If section 12 doesn’t apply then the employer can use the “objective justification” defence: that any discriminatory PCP was a proportionate means of achieving a legitimate aim. It will be difficult for the employer to succeed in this argument, though, unless it can show that it actively considered alternatives to requiring Sikhs to wear a safety helmet ‘on site’ and/or seriously considered alternatives to dismissal (such as placing the Sikh in an alternative position or providing them with further training, for example).

Conclusion

Employers must be extremely careful in implementing requirements for all employees (or workers, contractors etc.) to wear a safety helmet in the workplace as this blanket requirement may cause a claim to be brought against it for indirect discrimination by turban-wearing Sikhs who are disadvantaged by it. If a turban-wearing Sikh commences employment in a role where they may be required to wear a safety helmet then they should be exempted from having to do so, unless the exceptions stipulated above apply (i.e. they are members of the armed forces or, alternatively, acting in response to or training in response to emergency response situations.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    346 Reviews

    Anonymous

    I dealt with Chris Hadrill who was very knowledgeable and professional. To provide some context, I raised a grievance with my Employer and with the help of Redmans received a settlement offer. I have secured alternative employment and would recommend Redmans overall. I was very satisfied with the service I received and would rate it as 5 star.

    Posted 7 hours ago

    Danielle T

    I contacted Redmans in regards to a situation I needed dealing with with my employer. This was resolved within a week of initial contact and I couldn’t be happier. Both Chris and Sacha were brilliant and couldn’t have been more helpful! Thanks guys!

    Posted 1 day ago

    Anonymous

    Quick proccessing of my Redundancy agreement.

    Posted 4 days ago

    Anonymous

    Fantastic support during a difficult time! Chris was fantastic, from the first conversation all the way through a difficult process. Chris supported me with a settlement agreement and his counsel was invaluable. The company I worked for tried to suggest some solicitors that they knew would simply rush through an agreement. Thankfully I found Chris and the Redmans team, what a relief! They fought for me and allowed me to keep my focus on the next stage in my career journey. If I go through anything similar in the future Redmans will be my first point of call!

    Posted 5 days ago

    Anonymous

    Quick responses to all inquiries. Supportive and provided top-notch service. Extremely pleased with the outcome and would recommend to anyone in need of legal advise.

    Posted 6 days ago

    Ben H

    Good, quick and informative service.

    Posted 1 week ago

    Edward W

    I liked Mel Chin's approach to my inctruction. She provided clear advice and explained things in a manner that I understand. I rated her service 5 out of 5.

    Posted 1 week ago

    James B

    Great and prompt service- would recommend and use again!

    Posted 1 week ago

    Emma L

    Excellent service. From start the team where efficient and helpful, the whole process was made easy on a very stressful and upsetting situation. They worked well to support my situation and negotiate. Would highly recommend. Thank you to Chris, Sacha and the team.

    Posted 1 week ago

    Brian H

    I must say, not seeing any of you and doing all on-line works very well. Very pleased with the service and would recommend you. Fantastic service. Many thanks Brian Haines

    Posted 1 week ago

    Sheenu A

    Professionals with excellent quality of work.

    Posted 2 weeks ago

    Maris T

    I recommend Redman's Solicitors. Chris was very helpful and informative. He provided a speedy and efficient service at a reasonable price.

    Posted 3 weeks ago

    Anonymous

    quick response, friendly staff, my issue was smoothly done. superb

    Posted 4 weeks ago

    Anonymous

    Overall I was very satisfied with the service I received. Right from making initial contact to being contacted by Chris Hadrill. He was easy to talk to, friendly and professional and gave sound advice. I would certainly use Redman's again. Thank you for all your help, Chris. I would rate my experience as 5 star.

    Posted 1 month ago

    Jane K

    4 stars for quality of advise. the team are good but it feels rushed sometimes and hard to contact.

    Posted 1 month ago

    Arabella B

    I am so grateful to Caroline Lewis at Redmans Solicitor’s for helping me with my Unfair Dismissal Case. I was seriously impressed how easy Redmans made the whole case, and am very happy with my Settlement. I have recommended your firm to at least 5 people in the last 3 months.. Thank you Caroline and everyone at Redmans. You are Brilliant .

    Posted 1 month ago

    Anonymous

    Highly professional and efficient service.

    Posted 1 month ago

    Tanya T

    I had the pleasure of Chris and Sacha’s experience with a work matter. They made me feel at ease with the process and explained everything thoroughly. Would happily recommend Redmans especially Chris and use them if needed I’m the future. Thank you!

    Posted 1 month ago

    Anonymous

    I used the services of Redmans solicitors and was a quick outstanding service I engaged them in a settlement agreement after been made redundant extremely professional at all that was done and would definetly use them again

    Posted 1 month ago

    Adrian A

    Spot on support, enough to get the matter at hand sorted. No beating around the bush, no nonsense - got the job done and we all moved on.

    Posted 1 month ago

    Mark Q

    Five Stars I was most impressed by the attention, courtesy, speed and above all, professionalism in dealing with my Settlement Agreement. I would certainly have no problem in recommending this firm to anyone in need of their services.

    Posted 1 month ago