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 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 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).
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.