Tuesday, 17 June 2008

Scarves and Freedom of Hair

There was an extraordinary judgment in an employee tribunal case over a Muslim woman, who insisted on wearing a scarf, not getting a job in a hair dressers. As reported in the Times
A Muslim woman was awarded £4,000 yesterday after the owner of a hair salon refused to employ her because she wears a headscarf.

Bushra Noah, 19, who has been rejected for 25 hairdressing jobs, had accused Sarah Desrosiers of religious discrimination after she failed to offer her a position in May last year. Ms Desrosiers, 32, said she needed staff to display their hairstyles to customers at the Wedge salon in King’s Cross, North London.

A panel at the Central London employment tribunal dismissed a claim of direct discrimination but upheld a complaint of indirect discrimination.

What is indirect discrimination? Well...
The panel refused an application by Mrs Noah for aggravated damages. But they did find that she had been badly upset by the 15-minute interview and awarded her £4,000 damages for “injury to feelings”
Does that make this clearer? Not to me. If your beliefs get in the way of doing your job, then surely you are not qualified to do that job. If your beliefs lead you to make your freedom of expression more important than having that job, and which specifically obstructs you in the performance of that job, then you are not only not qualified, you have chosen not to be qualified, even if this is an informal qualification, it sure is obvious in this field. Now a bald male can still be a hairdresser but it is not due to freedom of expression that they have nothing to show. Hairdressing is an image business - indeed one that ironically encourages freedom of expression - and employees are often required to reflect the ethos of many salons, having, if possible, hair styles that go with the styles on offer to their clients. If this is a potential issue, then chose another career, or accept that your employment prospects are going to be more limited.

Why did she chose this salon out of the other 25 that also rejected her? A pure guess is that in this case, it might have been not that it was more apparent there was a religious issue but rather the salon owner, was being helpfully honest, unlike others, in stating that that wearing a scarf would disqualify her from employment? Is the message here is to reject scarf wearers without telling them why they were rejected, assuming they were otherwise competent, to avoid the danger of costly civil actions? My guess is confirmed by a quick, albeit anecdotal, check with my few hairdresser friends who said this is exactly what they would now have to do, rather than give friendly and honest advice to the job applicant. And this includes hairdressing colleges!

Still I am puzzled over this "indirect discrimination". Searching other news articles did not help. In the Independent
The Tribunal also decided that that the woman had not been treated differently because she was a Muslim and they concurred with the owners assertion that: "I never in a million years dreamt that somebody would be completely against the display of hair and be in this industry", which is a fair point.
Sarah Des Rosiers' own site wedgehair shows what is likely to be expected of her employees, so I can agree it is highly that she never considered this possibility. Still no answer over this "indirect discrimination", what is it, if the tribunal agrees that Mrs Noah had not been the victim of Islamaphobia? Well in the Daily Mail (not the best recommendation for reporting this impartially, but it appears fine in this case) she is interviewed and says although she did not have to pay the original £34,000 claimed:
'I am a small business and the bottom line is that this is not a woman who worked for me,' says Sarah.

'She is simply someone I met for a job interview, who, for a host of reasons, was not right for the job. I cannot see how she deserves £4,000.

'As for the notion that I've injured her feelings - well, people's feelings get injured every day. I dread to think the sorts of things that people will try to claim injured feelings for now that this precedent has been set.'
Still finally we can see what "indirect discrimination" means here:
But with regard to the issue of indirect discrimination, they found that Sarah had pursued a 'legitimate aim - that aim being to promote the image of the business'.

However, the burden of proof was on Sarah to prove that her means of achieving that legitimate aim was proportionate.

She was not able to prove her contention that employing someone with a headscarf would have the negative impact on her business's stylistic integrity that she feared.
Ah now I see. People work to create businesses based on what they think will achieve their goals. A small business does not have the resources of a large business to employ marketing and business consultants and their ilk, who very likely could have made a decent argument - not that I am saying it is correct - that this could impair her business.How much resources are required for employing a stylist's assistant? The court should have born in mind what level of proof is required for a small business to operate. If every small business has to provide such proof from so-called expert and expensive consultants that charge say £2000+ per day, very few would be able start or carry on a small business. Imagine if small business bank loans were predicated on such evidence. Maybe if all her employees are required to have pink hair, and refusal to have pink hair would be indirect discrimination? It is up to the employee to decide what is required for the business including a dress (and hair) code. I once nearly lost a job for having a pony tail. Still if I had lost it, is that discrimination - could I have taken them to court over this? As it happens I kept the pony tail and the job (thankfully the pony tail is now gone forever).

Still £4000 for "hurt to feelings"? Over a 15 minute interview. This is truly ridiculous. We live in a world where peoples feeling get hurt all the time, welcome to life. Why cannot Sarah Des Rosiers sue over her hurt feelings and costs and damage to her business? Well I hope she probably ends with much free publicity and that anyone who wants pink hair in North London is more likely to go to her salon as a show of solidarity and freedom of expression. The idea of compensation for hurt feelings on such a minor scale is absurd. There is no right not be be offended or hurt. Indeed everytime I read something like this, my feelings are hurt - aaahh - and I have spent more than 15 minutes (just) writing this post. Now why can I not sue Bushra Noah and the Employee Tribunal over my hurt feelings?