Hair today, gone tomorrow

Harris v NKL Automotive Ltd

It is well established in law that Rastafarians (who wear dreadlocks as part of their beliefs) are not a racial group and cannot therefore claim race discrimination However, the Employment Appeal Tribunal (EAT) has now held in Harris v NKL Automotive Ltd that they can claim under the Employment Equality (Religion and Belief) Regulations 2003.

Basic facts

Mr Harris, an agency worker, was a driver for NKL Automotive between April 2004 and February 2006. The company complained to the agency in early February 2006 that his hair was untidy and that he did not present a positive image of the company.

Shortly afterwards, Mr Harris, a Rastafarian, complained to the agency that he had not been allocated work for that week. He felt that he had been discriminated against because of his hair which he kept in dreadlocks. He also complained that, unlike other agency drivers, he had not been taken on as a permanent employee.

Mr Harris was then signed off work for a month with stress, following which the agency sent him his P45 so that he could claim benefits. He lodged a grievance with both the agency and the car company, arguing that he had been discriminated against because of his beliefs. Although he referred to his long hair in his grievance letters, he did not complain that the company had discriminated against him specifically because his hair was in dreadlocks.

The company accepted that Rastafarianism constituted a philosophical belief and therefore fell within the scope of the Employment Equality (Religion and Belief) Regulations 2003.

Tribunal decision

The tribunal said that as the company was unaware of his Rastafarian beliefs until he lodged his grievance, it could not have directly discriminated against him.

And as he had worn long hair during the entire two years of his work with them, the company could not have indirectly discriminated against him by applying a “criterion or practice” that disadvantaged him. The correct comparator, the tribunal said, was a hypothetical person wearing dreadlocks but who was not of Rastafarian belief.

Mr Harris appealed against the finding that the company had not indirectly discriminated against him

EAT decision

The EAT disagreed with him, however, pointing out that there was no evidence to support the argument that the company objected to dreadlocks. It employed a number of workers with long hair (including one who was an employee) and its basic objection was that Mr Harris’ hair (which was matted) was untidy. It held that a policy of having tidy hair was a proportionate means of achieving the company’s legitimate aim of being presentable for clients.

Mr Harris then argued that the requirement to have tidy hair was, in itself, prejudicial to Rastafarians. However, the EAT said this presupposed that the company considered dreadlocked hair to be necessarily untidy. It concluded that as long as he kept his dreadlocks tidy, “then the criterion does not in any way discriminate against those with dreadlocks. The finding of the Tribunal … was that the Company did not object to wearing dreadlocks at least if tidy.”

However, although the EAT agreed with the tribunal, it expressed concerns about some of the ways in which it had reached its conclusions. For instance, its view that even if the company had objected to dreadlocks, this would have been justified because it wanted to “ensure a conventional appearance”. The EAT pointed out that “wearing a hat might have been a more proportionate response".

It was also concerned about the tribunal’s conclusion that the company had not indirectly discriminated against Mr Harris because it would treat people who wore dreadlocks but did not have Rastafarian beliefs in the same way as Rastafarians. It said this was irrelevant if the effect of the criterion meant that it impacted adversely on Rastafarians.