Deregulation Bil

Written evidence submitted by the Sikh Council UK (DB 18)

Amendment NC18

1. Summary

1.1 The Sikh Council UK (SCUK) is the largest representative body of Sikhs in the UK. We are recognised as the national advocate for British Sikhs in the United Kingdom and the European Union .

1.2 The SCUK has campaigned to remove the anomaly which currently exists in the law which provides turban wearing Sikhs with an exemption from having to wear safety helmets on construction sites but not in other workplaces.

1.3 The anomaly is largely historical and exists due to the exemption given to turban wearing Sikhs on construction sites not keeping up with the growth of health and safety law in industries less hazardous than construction sites resulting in Sikhs facing dismissal and disciplinary procedures and lost employment opportunities.

1.4 We welcome the G overnment’s Notice of A mendment s NC18 to the Deregulation Bill which proposes to extend the exemption for Sikhs from the requirement to wear safety helmets across workplaces in Great Britain as a big step forward for Sikhs in Great Britain.

1.5 However we have some concerns around the definition of workplace and that the draft amendment contains exclusions for the emergency and armed forces which will become permanently established in the legislation upon enactment.

1.6 We recommend the following changes to the draft amendment NC18–

§ removing the word workplace so as to remove the difficulties of definition

§ removing the exclusions for the emergency services and armed forces or as a minimum to qualify such exclusions so as to make the wearing of safety helmets a last resort in those services determined on a case by case basis and to set out any exclusions by way of statutory instrument rather than in the primary legislation

§ widening if necessary the applicability of the legislation to all territories of the United Kingdom from the existing coverage of Great Britain

§ amending the legislation to address concerns in respect of previous equivalence amendments made by the Equality Act 2010

1.7 This briefing sho uld be read in conjunction with our response to the Government’s consultation exercise dated 7 February 2014 . ( available on request )

2. Background

2.1 We welcome the proposal to extend the exemption across workplaces in Great Britain . The keeping of uncut hair and the wearing of a turban are an integral and mandatory part of the Sikh faith. Both male and female Sikhs wear turbans. The turban is an integral part of the body to devout Sikhs who will not wear anything in place of, under or over it such as a hat or cap.

2.2 The compulsory wearing of turbans for Sikhs is a unique aspect of not only their faith but also of their racial and cultural identity and so the wearing of a turban by a Sikh cannot be compared with other requirements in other faiths or cultures .

2.3 Sikhs are currently exempt from the requirement to wear safety helmets on construction sites but not o n other less hazardous places. The anomaly is largely historical and exists due to the exemption on construction sites not keeping up with the growth of health and safety law in industries less hazardous than the construction industry.

2.4 Currently Sikhs face dismissal and disciplinary procedures and/or being denied opportunities to work in industries where the wearing of safety helmets is otherwise required. There is anecdotal evidence to indicate Sikhs have themselves chosen to leave industries where the wearing of a turban will come into conflict with requi rements to wear safety helmets. Case studies of recent cases reported to SCUK are referred to in our consultation response of 7 February 2014.

2.5 The ex tension of the exemption across workplaces will remove the anomaly that currently exists in the law, provide a right for Sikhs to wear their turbans in their places of work , offer new employment opportunities for Sikhs hitherto not available, create certainty for employers and free them from costly and time consuming assessment of risks, dismissal and disciplinary procedures and litigation risk.

3. NC18 subsection 5: services e xclusions

3.1 We are concerned that the draft amendment to the Deregulation Bill NC18 , subsection 5 proposes to enshrine particular exclusions as primary legislation for Sikhs working or training to work in the police , fire and analogous emergency response services as well as the armed forces .

3.2 The exclusion from the exemption within these services will have a negative impact for Sikhs working in such jobs or roles as it will likely lead to blanket requirement s for Sikhs to remove their turbans to obtain or retain employment in such fields. The exclusion will have a detrimental effect on Sikhs who have a proud tradition in the services in particular in the armed forces and it will be a retrograde step at a time when the Government seeks to widen the ethnic diversity across the services.

3.3 Technology advances over time and what is not technologically possible at p resent may change in the future. It would therefore be prudent and would futu re- proof the legislation to not permanently set out exclusions in the body of the legislation .

3.4 All exclusion s from the exemption for Sikhs from having to wear safety helmets should be approached on a case by case basis and as a last resort when the risk to health and safety cannot be alleviated by other means instead of a ny blanket requiremen t mandating the wearing of safety helmets in all circumstances .

3.5 We are disappointed that the draft amendment NC18 has b een tabled without consultation regarding the wording of and the reasons for the services exclusions with us or any other Sikh community group as far as we are aware which we had previously requested . We do however appreciate that the Government’s decision to table an amend ment to the Deregulation Bill already before Parliament so as to enact this piece of legislation without undue delay has not provided a longer period for consultation .

3.6 We are not aware of the representations if any made by the police, fire or other emergency services and/or the armed forces in respect of the draft amendment and/ or the reasoning behind the proposal for particular roles or jobs in these services being excluded from the provisions of the draft amendment. We are not therefore convinced of the need for the proposed exclusion s and recommend their removal by way of deleting NC18 subsection 5.

3.7 Despite our reservations about the exclusions, if it is the Government’s position that the exclusions be enacted notwithstanding our concerns , we would request as a minimum the following two changes to subsection 5 of NC18 and/or any other legislation as necessary :-

(1) The services exclusions are specifically qualified by way of a "last resort" test analogous to that currently set out in the PPE Regulations 1992 . This will provide that any requirement to wear safety helmets in the excluded services will be a last resort when the risk to health and safety cannot be alleviated by other means and as such that a requirement to wear safety helmets in those services will be subject to a health and safety assessment on a case by case basis rather than any blanket policy being established

(2) The services exclusions are set out in a statutory instrument made under delegated ministerial power rather than set out in the body of the legislation itself. This will prevent the exclusions from being permanently established on the statute book and permit an easier mechanism and process for amendment in light of development s in technology and health and safety over time .

3.8 We would wish for any enabling clause in the legislation (which would provide the relevant minister with the power to make statutory instrument s ) to make clear that any statutory instruments made or amended shall be subject to the relevant minister consulting with the SCUK and/or its successor or equivalent representative Sikh organisations .

3.9 We would also wish for the enabling clause within the legislation to establish a periodic mechanism of formal review under which the relevant minister would respond to any representations from the SCUK and/or its successor or equivalent re presentative Sikh organisations relating to jobs or roles excluded from the exemption.

4. NC18 subsection 7: d efining workplace

4.1 We are concerned that that the term "work place" may create uncertainty. Is a worker at his workplace whilst being on call, whilst travelling between jobs, whilst being on his employer’s client’s site, whilst being on his employer’s contractor’s site , whilst being a visitor, whilst being a service user and so on? There is a n inherent risk of litigation on using a term such as workplace.

4.2 We recommend the removal of the words "construction site" without replacing them with any additional words throughout the draft provisions of NC18 . This will remove the difficulties of definition.

5. NC18 subsection 8: Great Britain

5.1 To the extent that sections 11 and 12 of the Employment Act 1989 do not apply to Northern Ireland and/or other United Kingdom territories outside Great Britain we would recommend the draft legislation and/or other legislation made under regional delegated powers as appropriate is amended accordingly so that Sikhs in those regions can benefit from the legislation like their counterparts in Great Britain.

6. NC18 subsection 11 to 13: amendments to section 12 of the Employment Act 1989

6.1 We are concerned that section 12 of the Employment Act 1989 as amended by Schedule 26 of the Equality Act 2010 has created ambiguity regarding the meaning and effect of that section.

6.2 Prior to the amendments section 12(1) stated:

12 Protection of Sikhs from racial discrimination in connection with requirements as to wearing of safety helmets.

(1)Where -

(a)any person applies to a Sikh any requirement or condition relating to the wearing by him of a safety helmet while he is on a construction site, and

(b)at the time when he so applies the requirement or condition that person has no reasonable grounds for believing that the Sikh would not wear a turban at all times when on such a site,

then, for the purpose of determining whether the application of the requirement or condition to the Sikh constitutes an act of discrimination falling within section 1(1)(b) of the Race Relations Act 1976 (indirect racial discrimination), the requirement or condition shall be taken to be one which cannot be shown to be justifiable as mentioned in sub-paragraph (ii) of that provision. ( our underline emphasis)

6.3 Following the amendment to section 12 in 2010, section 12(1) states

12 Protection of Sikhs from racial discrimination in connection with requirements as to wearing of safety helmets.


(1)Where -


(a)any person applies to a Sikh any requirement or condition relating to the wearing by him of a safety helmet while he is on a construction site, and

(b)at the time when he so applies the requirement or condition that person has no reasonable grounds for believing that the Sikh would not wear a turban at all times when on such a site,

then, for the purpose of determining whether the application of the provision, criterion or practice to the Sikh constitutes an act of discrimination falling within section 19 of the Equality Act 2010 (indirect racial discrimination), the provision, criterion or practice shall be taken to be one which the condition in subsection 2(d) of that section (proportionate means of achieving a legi timat e aim) is satisfied . ( our underline emphasis)

6.4 There is nothing in the Explanatory Notes to the Equality Act to indicate that the changes to section 12 of the Employment Act 1989 were anything other than an updating exercise to remove references to the Race Relations Act and replace them with the Equality Act.

6.5 An interpretation of section 12 as it now stands, that it does in fact permit an employer to avail himself of the defense of having a legitimate aim in requiring a Sikh to wear a safety helmet, would clearly defeat the whole object of the exemption granted in section 11 and we do not envisage this was the intent of Parliament in 2010.

6.6 For the avoidance of doubt and for comfort we propose that the opportunity presented by the proposal to amend the Employment Act 1989 is used to amend section 12(1) to revert back in part to the original wording of that section by the incorporation of the following words inserted to section 12 (1) below emphasised by underline –

12 Protection of Sikhs from racial discrimination in connection with requirements as to wearing of safety helmets.

(1)Where -


(a)any person applies to a Sikh any requirement or condition relating to the wearing by him of a safety helmet while he is on a construction site, and

(b)at the time when he so applies the requirement or condition that person has no reasonable grounds for believing that the Sikh would not wear a turban at all times when on such a site,

then, for the purpose of determining whether the application of the provision, criterion or practice to the Sikh constitutes an act of discrimination falling within section 19 of the Equality Act 2010 (indirect racial discrimination), the provision, criterion or practice shall be taken to be one which cannot be shown to be a proportionate means of achieving a legitimate aim and for which the condition in subsection 2(d) of that section (proportionate means of achieving a legi timat e aim) is satisfied .

7. Code of Practice

7.1 The draft amendments of the Deregulation Bill whilst very welcome are without prejudice to and compliment rather than replace the longstanding aspiration of the Sikh community in the United Kingdom for a statutory code of practice or other relevant guidance relating to Sikh articles of faith. We invite the Government to establish a comprehensive review of all legislation a ffecting Sikh articles of faith in which the SCUK would be will ing to participat e .

March 2014

Prepared 25th March 2014