Season 2.3: How to deal with stubble & tattoos? | Employment Lawyers in Your Pocket

blackadders logoSeason 2, Episode 3: Simon & Jack answer a tweet from Insights  ‘Can employers insist on male employees being clean shaven? What about tattoos?’. They don’t hold back addressing both issues as well as giving examples of previous cases of discrimination. In addition to this there is a few dodgy impersonations to keep you amused! Can you guess the Harry Potter character that Jack couldn’t?

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page. Thanks for listening!

You can listen to the lastest episodes here:
Season 2.2: How to give a good reference?
Season 2.1: How to be a good witness?

You can also download this podcast free on iTunes.

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

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The Equality Act for Service Providers – Certainly not a Piece of Cake

Facts of case

Last month saw a much publicised case in Northern Ireland involving a bakery and a customer requesting a message supporting gay marriage to be displayed on a cake. The owners of the bakery refused to make the cake on the basis that the message went against their strong religious beliefs. Belfast County Court held that this amounted to discrimination against the customer.

The law

In Scotland, the Equality Act 2010 ensures that people are treated equally regardless of whether they hold any of the “protected characteristics”. Similarly to discrimination in the workplace, when providing a service there are eight protected characteristics which a customer may possess, namely the following:  disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation and age. Interestingly marriage and civil partnership is a protected characteristic when a worker is in employment, but not when a service is being provided to a member of the public.

When you are offering a service to the public you must ensure that you are not discriminating against any of these protected groups. It does not matter if this service is being paid for or not. The term ‘service’ has been given a wide interpretation by the courts. It includes services offered physically by way of a shop, services offered online or services offered by telephone etc.

Direct discrimination

There are a number of different types of discrimination, some of which you may not even realise are occurring. The most obvious type is direct discrimination. This occurs when someone is treated less favourably than someone else because of a protected characteristic. An example of this is the above ‘cake row’. The customer was found to have been treated less favourably than another customer because of his sexual orientation in addition to his political beliefs. Where direct discrimination is found to have occurred there is no justification defence available to the service provider. If you are offering any such services you must ensure that you treat everyone equally.

Indirect discrimination

Indirect discrimination can occur without a service provider deliberately intending to break the law. This can happen when a general rule is applied by the provider which particularly disadvantages a person with a protected characteristic. Such examples can include taking orders for cakes by telephone only. This could indirectly discriminate against someone who is deaf and cannot use a telephone. Deafness would be included as a disability and is therefore protected under legislation.  However unlike direct discrimination, a service provider can justify indirect discrimination if the reasoning behind their policy is deemed to be fair. This applies if it is a proportionate way of achieving a legitimate aim. If you can demonstrate why you follow the particular policy, and it is deemed to be a fair reason for your company, then the policy will not amount to a finding of discrimination.


Discrimination in the workplace and for service providers is certainly not a piece of cake and can provide a rocky road for many companies. There are plenty of other situations when discrimination can occur and, unless you are a gluten for punishment, the yeast you can do is consider how you provide your services and ensure any half-baked practices are not discriminatory. Rather than turning your company upside down, if you are ever in any doubt about what amounts to discrimination and knead a second opinion, seek advice!  It would be wrong to assume that the Equality Act is much a dough about muffin (and sorry for the cheese(cake))

Andrew Wallace
Solicitor – Employment Law

Equality Considerations in Public Procurement

The Equality Act 2010 (EA) brings together various public sector equality duties under a new single equality duty.  This requires public bodies to consider various factors such as race, gender, age, disability, sexual orientation, and religion or belief when making decisions about the exercise of their functions.  The aim is to “promote the development of more personalised public services… and place the achievement of equality outcomes at the heart of our public services”.  The new general duty is underpinned by the specific duties which applied under previous legislation.

On 18 January 2011, sections 151 to 155, section 157 and Schedule 19 of the EA all came into force.  These provisions relate to the application of the EA to certain public bodies.  Essentially, they allow Ministers to add to the list of public bodies who are currently subjected to the equality duty.  The current list includes the Police and the NHS.  The specific duties which are to underpin the new single duty are not detailed in the EA.   However, the EA grants Ministers power to impose these specific duties by way of secondary legislation.

Specific duties may be imposed on a public authority, for example, in connection with its public procurement functions.  The public sector spends approximately £175 million each year on goods and services.  Some public authorities already use equality duties when putting work out for tender, for example, by asking contractors for a breakdown of their workforce by ethnicity or gender.  The aim of these provisions is to enable Ministers to set out how public bodies can go about using procurement more consistently to help achieve equality objectives.

Jack Boyle
Trainee Solicitor

End of the Default Retirement Age

Under the Employment Equality (Age) Regulations 2006 (and now the Equality Act 2010) employers have the right to impose retirement on employees who are aged 65 or over.   There are no adverse consequences for the employer, provided the correct procedure is followed.

This right is going to disappear from April 2011.   There will however be transitional arrangements so that provided due notice has been given, employers will be able to impose retirement up to 30 September 2011.

In effect this means that employers have a window of opportunity which will close at the end of March 2011 to impose retirement on employees aged 65 or over.   Thereafter, the dismissal of an employee aged 65 or over will have to be justified on one of the potentially fair grounds for dismissal (conduct, capability, redundancy or some other substantial reason).

While employers may be glad to retain the skills of employees who have passed their normal retirement age, it would be prudent to check payroll records to establish whether there are any employees who are already 65 or are approaching that age where the employer may want to take advantage of the present law to terminate employment by reason of retirement.

If you would like more information about this, please contact or

Sandy Meiklejohn
Partner & Accredited Employment Law Specialist