Voluntary New Code Issued by Campaigners to Tackle “Hair Discrimination”. What Are the Issues and How Can Employers Avoid Discrimination Claims?
18th January 2021
It was recently reported that Unilever UK, a major employer, has signed up to the Halo Code, published by the Halo Collective, a newly formed alliance working to create a future without “hair discrimination” (bias against those with hairstyles associated with their racial, ethnic and cultural identities).
Although typically not widely reported in mainstream media and often missing from employer-led diversity and inclusion discussions, a brief review of online petitions and commentary on hair discrimination should leave employers (and their advisers) in no doubt that there are some very strong feelings on this issue.
Indeed, the Halo Collective reports that for many Black employees, battling workplace dress/appearance codes – official or unofficial – is sadly part of everyday life. In many cases, this is an entirely unnecessary source of stress and frustration for Black employees (and their allies) as a result of dress/appearance/hair policies not having been properly thought-out by employers, though in a minority of cases, this may be intertwined with racism (conscious or otherwise).
Given the potential for significant employee relations issues and the consequent impacts on recruitment, employee turnover, wellbeing and productivity, and the real risk of successful discrimination claims (which are not subject to a statutory cap on compensation awards), Michelle Chance (Partner) and Chris Warwick-Evans (Associate) consider the nature of the problem, the legal position and some practical tips for employers to consider taking now.
What are the key issues?
The Halo Collective reports that some Black employees:
- are forced to choose between their career on the one hand, and their cultural identity and hair health on the other.
- report being humiliated at work because their hair was deemed unprofessional, unruly, unkempt, or a distraction to others.
The Liberal Democrats have recently written to the Equalities Minister, stating that hair policies enforced by employers (and schools), whether officially or unofficially, are an all-too-prevalent form of racial discrimination. In the employment context, they report hearing of “Black women being turned down for jobs because they wear their hair in braids or cornrows, and Black employees being told to chemically straighten their natural hair.”
Further, a recent study found that 1 in 5 Afro-Caribbean women reported feeling pressure to straighten their hair for work, and we are aware of Afro-Caribbean employees who report being successful at interview and who have been subsequently asked to straighten their hair or to modify their hair in other ways (such as the removal of braids).
The Liberal Democrats have also asked the Equality and Human Rights Commission (EHRC) and the Departments for Education and Business to develop new guidance for employers (and schools) to prevent hair discrimination in policies and practices.
Many employers have dress code and personal appearance or grooming policies. In our experience, many of these will have requirements that employees promote a “professional image”, and in some cases appear “tidy”, “well groomed” or “smart”, or have similar requirements.
Although this form of wording is generally acceptable, if traditional forms of Afro-Caribbean hair style are in practice (or by way of formal policy) prohibited, or frowned upon, this can be problematic and expose employers to the risk of race discrimination claims (which we discuss in more detail later below).
The Halo Code
Given the seriousness of the problem, the Halo Collective is working with employers and professional bodies to support them to adopt the Halo Code, the UK’s first Black hair code.
The Code is designed to protect employees who come to work with natural hair and protective hairstyles (i.e. hairstyles which aim to limit the stress of environmental factors on natural hair) associated with their racial, ethnic, and cultural identities.
Employers signing up to the Halo Code pledge to:
- champion the right of staff to embrace all Afro-hairstyles and acknowledge that Afro-textured hair is an important part of Black employees’ racial, ethnic, cultural, and religious identities, and requires specific styling for hair health and maintenance.
- celebrate Afro-textured hair worn in all styles including, but not limited to, afros, locs, twists, braids, cornrows, fades, hair straightened through the application of heat or chemicals, weaves, wigs, headscarves, and wraps.
- recognise and celebrate their employees’ identities and that hair texture and style have no bearing on an employee’s ability to succeed.
There is no legal obligation for employers to sign up to the Code, which is purely voluntary, though by adopting the Halo Code, it is hoped that this will ensure that no employee faces barriers to recruitment, progression and promotion or judgments because of their Afro-textured hair.
The Equality Act 2010
Unlike certain parts of the US, there is no UK law which explicitly prevents employers prohibiting certain forms of hair style. However, under the Equality Act 2010 (as amended) (the “Act”), it is unlawful for an employer to:
- discriminate indirectly by applying a provision, criterion or practice (PCP) (such as selection criteria, policies, employment rules or other practices) which are ostensibly neutral (i.e. apply to everyone regardless of race), but have the effect of disadvantaging job applicants or employees of a particular race, unless the employer can show this was objectively justified.
- discriminate directly by treating a job applicant or employee more favourably than others because of race.
- subject a job applicant or employee to harassment related to race.
- victimise a job applicant or employee because they have made or intend to make a race discrimination complaint under the Act.
In the context of the Act, the term “race” includes (but is not expressly limited to) colour, nationality, and ethnic and national origins, so the term is sufficiently wide to include groups such as Afro-Caribbean employees.
The real risk of grooming and appearance policies (formal or otherwise) is that they will be indirectly discriminatory where they have the effect of disadvantaging job applicants or employees of a particular race (unless objectively justified). It is irrelevant whether the indirect discrimination was intentional or otherwise.
To establish objective justification, the employer will need to be able to show there is a legitimate aim (i.e. a real business need) and that the PCP is proportionate to that aim (i.e. it is reasonably necessary to achieve that aim). The measures will not be proportionate if the employer could have used less discriminatory means to achieve the same objective.
In the event of challenge, the Tribunal or Court will undertake a fair and detailed analysis of the working practices and business considerations involved to decide whether the PCP was objectively justified. The more serious the disadvantage caused by the discriminatory PCP the more convincing the justification must be.
In a non-employment case, the High Court has held that a school’s policy prohibiting cornrows was indirect discrimination on the grounds of ethnic origin and could not be justified. In an employment context, in our view, purported customer or client “preference” would not be held to be objective justification for an indirectly discriminatory hair or appearance policy. However, in limited circumstances, health and safety reasons may provide objective justification for prescriptive requirements as to hair styles and use of styling products. In practice, we expect such circumstances to be rare as there will often be less discriminatory means to achieve the same objective.
Employers should also be aware that while it may be permissible to have separate rules for men and women, so as to protect against sex discrimination claims, the rules should not be more stringent for one group than another.
Steps to consider taking now
Although we are not imminently expecting new EHRC guidance to be issued (or any express change to the Act), in our view, given the increased focus on racial inequality, it is likely that the EHRC will issue new guidance for employers (and schools) in the medium term. Those employers who review their approach now are more likely to find any future changes easier to implement and are also more likely to foster high-performing, diverse and inclusive teams, as well as avoid successful discrimination claims. Further, during the pandemic, many businesses are focusing even more heavily on their diversity and inclusion agenda and initiatives, mindful of the disproportionate, adverse impact which Covid-19 is having on BAME (Black and Minority Ethnic) communities. Anything done now to ease this and improve members of BAME communities’ recruitment and career progression prospects would be welcomed and would pay dividends in terms of our future economic recovery.
- Review your personal appearance at work policy (or similar). If there are prescriptive rules in respect of hair, consider if these could be indirectly discriminatory because of race (or any other protected characteristic). If so, consider revising the policy or check that any such rules could be objectively justified if necessary. Similarly, if there are general requirements to look “professional” etc., also consider whether the way such requirements are implemented is indirectly discriminatory and whether they could be objectively justified.
- Consider whether staff (in particular, recruiting/hiring staff, and managers) may be implementing an unofficial or informal policy or practice in respect of job applicants or employees’ hair. If you are in any doubt, prompt training on the business’ approach can help address this with periodic refreshers as necessary. Unconscious bias training may also be helpful in this regard to assist managers in recognising and understanding the reasons behind some decisions they make, which they may not otherwise be aware of.
- If the business has a personal appearance policy, be prepared to consider making exceptions where this is appropriate rather than dismissing queries or concerns at the first opportunity. Concepts such as what is deemed to look “professional” etc. have often been considered from a European outlook/lens, and if concerns are raised by staff these should be carefully considered, ideally by more than one person with relevant knowledge and experience, and with input from diversity specialists (and other advisors) where appropriate.
- You may wish to consider whether your business should sign up to the Halo Code. If there are unaddressed or unexplained issues with the recruitment, retention or progression of Afro-Caribbean employees, this may well be a helpful (and cost neutral) step in conjunction with other measures. Employers can take comfort that the response to Unilever’s adoption of the Code has been widely reported and the response has been generally positive. In addition, the online notes make it clear that the Code does not prevent workplaces from issuing additional guidance around Afro-texture hair and protective styles (for example, in respect of health and safety), if applied consistently across all staff.
- Some BAME employees will have found this year to be particularly stressful, with racial tensions flaring in some US cities and subsequent global movements such as Black Lives Matter, in addition to being disproportionately impacted by the economic consequences of Covid-19, and this may well be an opportune moment to review your approach to diversity and inclusion more generally. For example, employers and managers may wish to consider whether there may be value in establishing or further developing networks for employees from historically under-represented or marginalised groups.
Publication of the Halo Code and the coverage it has received has demonstrated a further dimension to the work required by some employers to allow employees to bring their “whole selves” to work, though many employers will already have considered in some detail their requirements and approach to employee hair and be compliant with the Act and with the key objectives of the Halo Code.
Although we do not expect initial widespread uptake of the Code, in our view, employers and managers may well find it a worthwhile investment of their time to review and consider. Even where businesses do not formally adopt the Code, familiarisation is likely to help some employers and managers gain a fuller understanding of the issues, in particular, how appearance policies can unintentionally make people feel, and the legitimate strength of feeling some employees will have.
Employers should also be aware that although we would expect claims in respect of “hair discrimination” to typically be framed as race discrimination claims, it is likely they may also be pleaded as indirect sex and/or age discrimination claims (and more rarely, related to religion or philosophical belief). In our experience, a lawful and well thought-out approach to hair policies is likely to be time well spent both from an employee wellbeing, diversity and inclusion and recruitment perspective and to reduce the likelihood of successful race and other forms of discrimination claims more generally.