Why headscarf ruling isn't so clear cut

desrosiers.jpgYou’ve probably already heard about the £4,000 hair salon boss Sarah Desrosiers was this week ordered to pay Bushra Noah for ‘injury to feelings’ when an employment tribunal upheld a claim of indirect discrimination after Desrosiers declined to employ the 19-year-old Muslim on the grounds she intended to wear a headscarf while working.The tribunal rejected a claim of religious discrimination after accepting Desrosiers' defence that she expects all staff to sport hairstyles reflecting the ‘funky, urban’ image of her salon and that she’d also not employed Noah because she lived too far away.The story has prompted a rather predictable ‘political correctness gone mad’ reaction underlined by a rather more sinister eagerness to carry headlines with the word ‘Muslim’ juxtaposed to a hardworking British business person going about their everyday business.Lame journalism hides what’s actually an interesting case. Now, Desrosiers, of course, is perfectly entitled to demand the role involves sporting the coolest cuts. She insists she’d have had the same objection to someone wearing a baseball cap and there’s no evidence whatsoever she intended to upset or discriminate.For a £34,000 legal claim to arise from a 15-minute interview is, frankly, scary.This is where most business titles start ranting about how business owners are being shafted by red tape and how the law’s an ass. Now I’ll bang the business drum louder than anyone, but not when it’s futile. The law is the law and simply calling it an ass doesn’t really help.What’s not been highlighted is whether Desrosiers stipulated the requirement in her job ads or description. If she didn’t, then technically Noah could have been overlooked for a reason that wasn’t relevant to her ability to do the job or applied to other candidates.I’m not suggesting that happened – but it does happen. The law is murky deliberately to ensure tribunal panels get to the bottom of intent in individual cases. While the £4,000 fine is certainly questionable, the panel’s decision to reject Noah’s primary claim is actually a victory, not defeat, for common sense.Employment law can feel like a minefield and Desrosiers is possibly justified in feeling hard done by, but providing you make a clear job description and apply your criteria consistently during recruitment you’ve very little to worry about. Be vague and then change the rules, no matter how innocently, and you’re opening yourself up to trouble.

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