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Refusal to allow employee to carry Sikh dagger was not indirect discrimination.
Dhinsa worked as a prison officer. He was an Amritdhari Sikh. Fewer than 10% of all Sikhs are Amritdhari. Amritdhari Skikhs are required to wear a kirpan, which is a ceremonial dagger, one of the five Sikh articles of faith.
When Dhinsa started work in 2009 he wore the kirpan during his training. This was mentioned to the trainers, but no concerns were expressed. However when he started work as a prison officer, Serco became aware that he was carrying a kirpan and raised concerns.
The kirpan is about six inches in length and made of iron or steel. It is ceremonial and not carried as a weapon. However, Serco was concerned that it could be a health and safety risk in a prison environment. Although prison chaplains are allowed to carry kirpans, it was seen that they had a pastoral role which was very different from the role of a prison officer, which is to enforce order. There were concerns that an incident could occur which could be potentially fatal.
Serco also found that HM Prison Service had a rule banning prison officers from carrying a kirpan. They discussed the issue with Dhinsa and discussed compromises, including carrying a replica kirpan. This suggestion was rejected by Dhinsa. He was dismissed and brought various claims, including indirect race and religion discrimination.
The race claim failed because the Employment Tribunal found that, although Sikhs are a racial group, Amritdhari Sikhs are not a distinct racial group. Hence, the ban on carrying a kirpan had to be applied to Sikhs as a whole, and as less than 10% were required to carry one it did not disadvantage the group as a whole.
In looking at the religious claim it was clear that the ban on carrying a kirpan did disadvantage Amritdhari Sikhs. However, the Tribunal found that it was a proportionate means of achieving a legitimate aim - that of preventing a potentially dangerous incident within the prison. Hence, the claim was dismissed.
Comment for employers
Although the ban on carrying a kirpan did put the group at a disadvantage this is a good illustration of the fact that an employer can justify such a situation when it is a proportionate means of achieving a legitimate aim.
