Mr H&S.
Here's the posting......
Posted By peter gotch 1
Steven,
Firstly with no intention to offend Tony, and as another ex HSE Inspector, I would not necessarily trust HSE to get it right!
There is a long history of duty holders falling foul of discrimination law throughout the English speaking world......
Here's one from April 2008, which as you can see I lifted from the late lamented "Old Forum".....Whilst it mainly deals with race/religion I would expect the courts to apply similar principles to any other issue of discrimination.
When I was asked to expand 2000 postings into a broader article I was rather stymied when my computer at work refused to do Google search for 'sex discrimination health safety' - our organisational policies did not like 'sex' in an internet search! [I always wondered how our HR team were supposed to be capable of doing their job!]
Would need to do some reminder research but I think the Bhinder case referred to below was case against British Steel where the STATUTORY exemption for Sikhs on Construction sites did not apply - employment was in a steel stockholding warehouse.
Regards, Peter.......
Re: Rastafarians
Posted by peter gotch on Wednesday, 30 April 2008 at 10:00
mmm. HSE don't seem to be aware of the case law.
Here's some very dated extracts from the old forum in response to question which originated in Oz. [I don't know whether all the web pages will still work].......
Posted by peter gotch on Monday, 28 August 2000
In Great Britain, the Construction (Head Protection) Regulations 1989 apply.
The basic principle of the Regulations is to require everyone to wear suitable head protection whenever there is a foreseeable risk of injury to the head other than arising from a person falling.
Sections 11 and 12 of the Employment Act 1989 exempt members of the Sikh religion who are wearing turbans from any requirement to wear head protection on a construction site.
A Sikh not wearing a turban is required to comply with these Regulations in all respects.
Sikhs choosing to wear turbans deny themselves use of adequate head protection, and will limit the employer’s liability in the event of a claim, because of this.
The exemption was contraversial!
Posted by peter gotch on Tuesday, 29 August 2000, at 8:38 a.m., in response to Re: ....and now for a "curly" one, posted by Jim on Monday, 28 August 2000, at 7:22 p.m.
Jim,
Exclusion of a turbaned Sikh from a work area may constitute racial discrimination, and therefore not be reasonably practicable. See the following (edited) extract from the UK Commission for Racial Equality Code of Practice on Employment
(Incidentally other Commonwealth countries have come to similar conclusions).......
".........Where employees have cultural and religious needs which conflict with work requirements, it is recommended that employers consider whether it is reasonably practicable to adapt these requirements to enable such needs to be met.
For example, it is recommended that they should not refuse employment to a turbanned Sikh because he could not comply with unjustifiable uniform requirements
S.11 of the Employment Act 1989 exempts turban wearing Sikhs from any requirement to wear helmets on a construction site.
Where a turban wearing Sikh is injured on a construction site liability for injuries is restricted to the injuries that would have been sustained if he had been wearing a helmet
S.12 of the Employment Act provides that if, despite S.11, an employer requires a turban wearing Sikh to wear other protective head gear such as a safety helmet on a construction site, the employer will not be able to argue that this is a justifiable requirement in any proceedings under the Race Relations Act to determine whether or not it constitutes indirect racial discrimination
Although the Act does not specifically cover religious discrimination, work requirements would generally be unlawful if they have a disproportionately adverse effect on particular racial groups and cannot be shown to be justifiable*.
* (footnote) Genuinely necessary safety requirements may not constitute unlawful discrimination......."
Posted by peter on Tuesday, 29 August 2000, at 3:18 p.m., in response to Re: ....and now for a "curly" one, posted by peter gotch on Tuesday, 29 August 2000, at 2:41 p.m.
It's a matter of degree of risk, as to what would constitute a reasonable rule.
See extracts from
http://www.austlii.edu.a...cripts/1996/S194/1.html
Canadian case, Ontario Human Rights v Borough of Etobicoke (1982) 132 DLR (3d) 14. was a case involving firemen over 40 where the borough, largely it seems on the basis of anecdotal material that firefighting is a young man's game, had said that firefighters had to retire at 40.
The Canadian Act used the same sort of language as the American cases; "bona fide occupational qualification".
It must be related in an objective sense to the performance in that it is reasonable necessary to assure the efficient and economical performance of the job -
The same sort of test was applied in Bhinder's Case which is referred to there.
That was a Sikh case involving the question as to whether a safety helmet had to be worn. The argument was that the Sikh employee who will not wear the safety helmet in the yard is creating risks, and so on.
Again, the approach taken was that one looks at the reasonableness. If the situation is that it is only once in a thousand years that you are going to have an accident where the safety helmet is going to protect him, then it is unreasonable to require him to wear it.
If he is in a position where quite regularly heavy objects fall on one's head and there is a serious risk, then it is reasonable to say that a Sikh who will not wear a safety helmet is unable to perform that job.
So it is always a question of degree and looking, on that test, at what is reasonably necessary to assure the economic and efficient performance.
The provisions of this section relating to any discrimination, limitation, specification or preference for a position or employment based on age, sex or marital status do not apply where age, sex or marital status is a bona fide occupational qualification and requirement for the position or employment.
Also UK's leading Trade Union solicitors:
http://www.thompsons.law...k/ltext/l0100004.htm#12
Is a requirement or condition one with which persons of a racial group 'can comply'? This question commonly arises in racial discrimination cases in respect of Sikh turbans, where there may be an attempt to make it a condition that turbans may not be worn.
The courts have interpreted the phrase as meaning 'can comply' in practice rather than meaning can physically comply. A school which refused admission to a Sikh boy because he wore a turban was held to have indirectly discriminated against the racial group to which he belonged. (But see also Justifiability below.)
Disproportionate Impact
Having established that the employer has applied a requirement or condition to the employee, the employee must establish that that requirement or condition has a disproportionate adverse impact on persons of the same racial group as him or her; that the proportions of the same racial group who can comply with the requirement or condition is considerably smaller than the proportion of persons of another racial group who can comply.
What is or is not a considerably smaller proportion is a matter for the Industrial Tribunal. Considerably smaller are ordinary words in common usage.
Justifiability
The next requirement for indirect discrimination, having shown a discriminatory condition which has a disproportionate impact and which is to the detriment of the person complaining, is that the discriminatory action cannot be justified irrespective of the racial origins of the complainant. The applicant does not have to show that the condition cannot be justified - that is assumed - but the employer may seek to prove that the condition is justified.
Sometimes a condtion, which on the face of it is discriminatory, can be justified by the employer. The wearing of a turban may be incompatible with a safety requirement that the individual should wear a safety helmet. It is for the court to strike a balance between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it (1) though Parliament has now stepped in to allow Sikhs not to wear helmets on building sites.
A rule forbidding beards at work, which is indirectly discriminatory to Sikhs, is justified as a matter of public health in the context of food preparation or manufacture. (2)
(1) Hampson v. Department of Education & Science [1989] IRLR 69 CA.
(2) Singh v Rowntree Mackintosh Ltd [1979] ICR 554, [1979] IRLR 199