Workplace rights: Indirect discrimination

Can employers make discriminatory decisions on the basis of customer preference?

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Last Updated: 09 Oct 2013

Say, for example, a black person is rejected for a door-to-door insurance sales position on the basis that homeowners in the area are more likely to buy policies from white salespeople. That would be blatantly unlawful. Businesses break the law if they allow an outlawed factor such as race or sex directly to influence a decision on recruitment. In contrast, policies that are merely indirectly discriminatory are unlawful only if they cannot be justified. The issue arose in the case of a hair salon specialising in 'urban, funky cuts', which insisted on stylists displaying their own hairstyle to promote the brand image. A tribunal ruled that this indirectly discriminated against a headscarf-wearing Muslim hairdresser on grounds of her religion, rejecting the salon's justification defence. Discrimination on grounds of age can potentially be justified, even if it is direct. It will be interesting to see the outcome of cases such as the uber-cool nightclub openly preferring younger bar staff to enhance its image with the target clientele. The problem with policies of this kind is that they often pander to the very prejudices and stereotypes that the legislation is designed to challenge.

- Michael Burd and James Davies, Lewis Silkin LLP solicitors - e-mail: employment@lewissilkin.com.

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