Dreadlock Congo Bongo I, Don’t care what the world seh
by Liam
Like Bob Marley when writing the above lirick, Mr Harris didn’t care what the world, or at least his employer, NKL Automotive Ltd, said about his dreadlocks - in particular they did not represent the company well.
Harris was a Rastafarian who claimed he had been discriminated against because of his hair (part of the Rastafarian belief involves wearing long hair/dreadlocks). It has long been clear that Rastafarians are not a racial group and therefore can not claim Race Discrimination under the Race Relations Act. However, the EAT has now held that they can claim under the Employment Equality (Religion and Belief) Regulations 2003.
Unfortunately for Mr Harris, whose hair was described as matted, the EAT held that a policy of having tidy hair was a proportionate means of achieving a legitimate aim of appearing smart and presentable to clients and he therefore lost his claim of indirect discrimination.
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Setting the Record Straight!!
Having represented Mr Harris (my partner) at his original three day Employment Tribunal Hearing in this case, due to two solicitors firms in Doncaster refusing to take such a complex case on under the legal help fixed fee scheme (too much work and not enough money!!!).
I can only say, I hope that nobody else has to go through such an ordeal! They speak of putting all parties on an equal footing, what an eye opener what a joke!!
From the moment we attempted to resolve my partner’s grievance we encountered nothing but trouble, after working for NKL Automotive Ltd which is based in Goole (’the Company’) for 18 months (having had a break of five weeks in the middle of this period due to the fact we had just had a baby at the time!!), ‘the Company’ refused to meet with Mr Harris under any grievance procedure of theirs stating that he was not an employee, and Link Agency trading as Matrix Consultancy UK Ltd (’the Agency’) failed to respond at all, thus we were left with no choice but to submit an ET1 form to the Tribunal.
A Case Management Hearing was held and subsequently the Chairman made an order for disclosure of certain documents by ‘the Company’ and ‘the Agency,’ and also that the bundle be prepared by the 1st Respondent’s representative (Ms. L MacDonald of RBS Mentoring Services).
‘The Company’ then refused to hand over vital documents, such as Mr Harris’ time sheets, (probably because they identified that ‘the Company’ were in fact breaching the requirement of 11 hours rest break between shifts as required by the WTR 1998, consequently the Health and Safety Executive have investigated and ordered that ‘the Company’s’ working practices be changed!). Furthermore ‘the Company’ maintained that the Contractual Agreement between ‘the Company’ and ‘the Agency,’ did not exist, however this document miraculously appeared when ‘the Agency’ eventually disclosed it, which funnily enough stated that any agency worker supplied by ‘the Agency’ to ‘the Company’ (like Mr Harris) was in fact engaged under a ‘contract of employment.’ If that wasn’t enough ‘the Company’ also submitted a different response to the original response to Mr Harris’ letter of grievance in the bundle, of which we still had the original.
It gets worse… ‘The Company’s’ representative, who prepared the bundle, then failed to disclose it to us by the required date, in fact we only received the bundle the day before all witness statements were supposed to be mutually exchanged, I had therefore complained to the ET regarding the non-disclosure and consequently a further Case Management Hearing by telephone was arranged, and due to adjournments didn’t take place until four working days before the full Hearing was due to be heard.
Of course due to the fact that my partner and I are lay-people and I was waiting on the Tribunals directions, we had thought that the Hearing would have to be adjourned, however to our disbelief the Chairman Mr Burton stated that the Hearing would not be adjourned and instead ordered that I disclose all witness statements by the following day. The decision not to postpone was eventually overturned, but only because I discovered that the same Chairman Mr Burton, who had sent out the original Notice of Hearing only 7 days before the Hearing date, was actually required by Rule 14(4), schedule 1 of the Employment Tribunals (constitution and rules of procedure) Regulations 2004, to send out the Notice of Hearing to every party not less than 14 days before the Hearing.
If all that wasn’t bad enough, when the actual full Hearing eventually came around, it was almost farcical. To make things worse I was expecting a baby again and the first day of the Hearing was my birthday! Moreover, although I have a law degree, I had never had any advocacy training what so ever, and yet my partner and I were up against a team of Employment Lawyers, led by Mr Bourne with some 10 years Call to the Bar. Nervous was not the word! Luckily for me, however there was a Rastafarian herbal remedy at hand!
Firstly a large amount of time at the Hearing was wasted because the document ‘the Company’ had submitted instead of Mr Harris’ time-sheets, and which they claimed to be a true reflection of his working hours, was later found not to be the case. Secondly, obviously disgruntled by the fact that I had some legal knowledge, ‘the Company’s’ Counsel, Mr Bourne launched into a fierce technical legal debate with myself regarding the absurdity of claiming on the one hand that my partner was an employee and therefore unfairly dismissed and yet at the same time that he had been discriminated against because he had not been taken on ‘the Company’s’ books, I pointed out that it was Parliament’s actions that had led to this confused position not Mr Harris. Counsel even went as far as suggesting in a round about way that I had orchestrated the whole shebang.
On a more serious note, despite the finding of fact that Mr Harris is indeed a Rastafarian and thus covered by the Religious Belief Regulations, had we been aware that the Hearing was going to degenerate into a debate about whether my partner’s matted long hair constituted dreadlocks or not and more importantly whether his hair was in dreadlocks whilst he was employed by ‘the Company’ we would have obviously called multiple witnesses who could have ended this speculation, (indeed our neighbour of over six years, who is in her seventies even knew that Mr Harris’ hair is and was in dreadlocks and our daughter age 6 has always referred to her fathers hair as Bobby hair, after the prophet Bob Marley).
Instead, Mr Harris was subjected to humiliating treatment during the Hearing, at which because of the fuss over his hair he had decided to wear his Tam, and which Mr Bourne of Counsel later quite disrespectively asked him to remove. Furthermore the Tribunal allowed questioning to continue which simply aggravated matters, with our own witness (another agency worker who had since left ‘the Company’) and who had stated in his witness statement that Mr Harris’ hair was in dreadlocks, after a continual bombardment of questions from Mr Bourne of Counsel became confused spurting out “his hair was all tied back in clumps” and “well I know it definitely wasn’t a perm.”
In addition ‘the Company’s’ main witness, Dean Palmer, amongst other things claimed that Mr Harris’ hair was like ‘status quo’s, further stating that “we did not have an issue with the fact [Mr Harris] had long hair. We employ another individual, Bernard Thompson who has long hair. Bernard Thompson’s hair is acceptable because it is always kept neat and tidy whereas [Mr Harris’] was frequently unacceptably untidy.”
Funnily enough when later questioning Mr Palmer, even though he was the Operations Director, he admitted that he didn’t know what ‘Diversity Training’ meant. Indeed it is worth noting at this point that ‘the Company’s’ Equal Opportunities awareness was less than desirable, for instance on their ‘job application form’, ethnic groups were ignorantly categorised as ‘White; Black/Asian; Black/African Caribbean; or Other’, and ‘the Company’ dress code which they produced for the Hearing specified ‘neat professional hair cut’ only and failed to acknowledge religious exceptions.
‘The Company’s’ other witness Ian James, Mr Harris’s Supervisor, went further and stated “I can say that at no time during his time at NKL Automotive Ltd did I see Mr Harris with anything resembling dreadlocks,” however he hilariously went on to describe dreadlocks as “hair that is sectioned off and allowed/trained/teased to form zigzag dreads.” That’s a first!! Mr James witness statement was discredited further when he finally admitted to the Tribunal that he had been told by ‘the Company’ to exaggerate about Mr Harris’ appearance in his testimony, which he had described as “being unkempt/dishevelled/untidy.” Indeed the Tribunal Members were further baffled at the time, regarding how a Supervisor who was so concerned about Mr Harris’ appearance and lack of adherence to ‘the Company’s’ dress code, had never addressed the issue with Mr Harris in person whilst he worked for ‘the Company’.
Moreover Mr Jones of ‘the Agency,’ who originally telephoned Mr Harris on the 17 February 2006 to explain that the reason ‘the Company’ had not taken him on their books after 18 months was because “he needed to improve his appearance, in particular his hair did not represent the company well,” there was no mention at this time that ‘the Company’ had any other issue with Mr Harris. Mr Harris’ response was to say to Mr Jones that he thought he was being discriminated against, and that he wasn’t prepared to cut his hair and that it was impossible to have his dreads any neater, as he always tied them back in any event. Mr Jones then attempted to offer Mr Harris alternative work in a factory or warehouse where his hair wouldn’t be such a problem. Mr Harris stated that he didn’t want alternative work and reiterated that he thought he was being discriminated against and would be seeking legal advice. Subsequently Mr Harris was signed off work for one month with stress by his GP, Mr Harris sent in his sick note to ‘the Agency’, in return ‘the Agency’ sent Mr Harris is P45.
Finally it is considered imperative to provide some insight into what Mr Harris’s job with ‘the Company’ actually entailed, indeed although the job title was ‘executive car driver,’ in fact it was actually ‘trade plating,’ namely collecting, delivering and appraising new and used cars and vans anywhere in the Country, in any weather, and having to rely substantially on public transport to get from one vehicle to pick up the next.
Yet despite all the above, when the written judgement of the ET arrived, to our dismay it felt like the facts in my partner’s case had been twisted beyond all recognition. It appeared that any oral evidence given by both Respondents was given more weight than anything else, indeed to name but a few in Mr Harris’ contract with ‘the Agency’ it specified that the “Worker may be eligible for SSP, provided that he/she meets the relevant statutory criteria” yet Mr Jones stated in oral evidence that he didn’t pay statutory sick pay to anyone, which was accepted as fact by the ET, the EAT went further and considered this beneficial to Mr Harris as he was then able to claim state benefits instead, however ‘the Agency’ failed to complete their part of the SP1 form which enables someone to claim benefits so Mr Harris’ benefits were delayed by five weeks and he received £10.00 per week less than if on SSP, I might add.
It has to be said that the most ridiculous outcome in this case is however the ET and the EAT’s conclusions regarding what constitutes dreadlocks and whether they were accepted by ‘the Company’. Quoting the honourable Mr Justice Elias at para 19 of the judgement “the Tribunal found in para.13 that there was no evidence that the Company did object to dreadlocks as such. It is not obvious to us, and it was plainly not obvious to the tribunal, to say that hair being matted is the same as hair being dreadlocked. It may be that all dreadlocked hair is matted, but it does not follow that all matted hair is dreadlocked.”
In my view, this finding is the most twisted of all, even bordering on perverse, and clearly a distortion of the true meaning of words. Indeed in response I feel that it is imperative to clarify a few historical facts regarding the origins and meaning of the word ‘dreadlocks’. Firstly, hair that is not cut and is allowed to grow without the aid of using a brush or chemical products naturally grows matted, the more the hair grows the more matted the hair becomes, this is not a new phenomenon, there are reports that many tribal people in history wore their hair in this natural state, including the Celts, which the Roman’s described as snake like hair.
Secondly, a symbolic feature of the Rastafarian belief is to let their hair grow in this natural matted way, the word given to naturally matted hair by Rastafarians is ‘dreadlocks’, meaning ‘dreaded’ or ‘awesome’ hair. Prior to the Rastafarian Movement the word dreadlocks did not even exist. It must therefore go without saying that any Rastafarian, like Mr Harris, who manifests their belief in this way, has dreadlocks. Mr Harris’s hair was unacceptable to ‘the Company’ and as such what ‘the Company’ would have really accepted is tidy manicured matted hair, but not naturally formed dreadlocks.
To conclude, if the EAT’s decision that ‘the Company’s’ requirement in its dress code that employees have a professional hair cut/tidy hair is a proportionate response and justified ‘because of the desire to ensure a conventional appearance for ‘the Company,’ is upheld should an appeal be submitted. It subsequently means that the Religious Belief Regulations that are supposed to be in place to protect and promote the diversity within our community are merely paper rights that can easily be evaded by any employer.
Ms R L Parry said at October 17th, 2007 at 4:09 pm