Is it discriminatory to require hospital staff to be clean shaven to facilitate the effective wearing of personal protective equipment?

Abstract

National Health Service employers are subject to legal duties to protect the health and safety of their employees and third parties who come into contact with their staff. In order to discharge these duties, National Health Service employers must implement a range of protective measures to mitigate risk. One such measure is to require staff to wear personal protective equipment, including respiratory protective equipment, in certain circumstances. This is of particular importance during the Covid-19 pandemic. However, the presence of facial hair has a negative impact on the effectiveness of respiratory protective equipment. This article discusses whether a requirement to be clean shaven could amount to discrimination under the Equality Act 2010.

Keywords

Covid-19 coronavirus NHS health and safety PPE RPE face masks facial hair beards discrimination religion

Introduction

Covid-19 is an infectious disease caused by the coronavirus, SARS-CoV-2. It spreads primarily through droplets of saliva or discharge from the nose when an infected person coughs or sneezes. The World Health Organisation reports that around 20% of those who contract Covid-19 become seriously ill and require hospital treatment, and around 5% fall critically ill and need intensive care. At the time of writing, there have been over 50 million cases of Covid-19 and over 1.25 million deaths across the globe.¹ There is also a growing body of evidence that some people do not fully recover from Covid-19 and suffer ongoing and debilitating symptoms.²

Given the ease with which the disease spreads, and the risk of serious illness or death, hospital staff treating Covid-19 patients are exposed to a significant health risk. Research from the early phase of the pandemic has found that the vast majority of National Health Service (NHS) staff who died from Covid-19 performed patient-facing roles.³ An independent review of 620 deaths of frontline staff infected with Covid-19 has since been established.⁴ Furthermore, workers risk spreading the disease to other employees and third parties during time spent working prior to developing symptoms or testing positive for Covid-19.

Employers have legal duties to protect the health and safety of their employees and third parties who come into contact with their staff. In order to discharge these duties, employers must implement a range of protective measures to mitigate risk. One such measure is to require staff to wear personal protective equipment (PPE), including respiratory protective equipment (RPE), in certain circumstances. One difficulty NHS employers have encountered is the negative impact of facial hair on the effectiveness of RPE. Facial hair makes it impossible for certain types of face mask to form an airtight seal on the face and so exposes the wearer to the risk of infection. Although a simple solution is to require employees to be clean shaven, this is not without legal risk. This article discusses whether such a requirement could amount to discrimination under the Equality Act 2010.

Health and safety duties

4. The principal statutory duties are set out in the following pieces of legislation:

a. The Health and Safety at Work Act 1974 (HSWA): The HSWA is the primary piece of legislation covering occupational health and safety in Great Britain. It imposes a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees and third parties who are affected by work-related activities.

b. The Management of Health and Safety at Work Regulations 1999 (MHSW Regulations): The MHSW Regulations require employers to assess the risks of work-related activities and identify remedial measures. Employers must develop a coherent overall prevention policy and give appropriate instructions to employees.

c. The Control of Substances Hazardous to Health Regulations 2002 (COSHH Regulations): The COSHH Regulations govern the control of occupational exposure to biological agents in healthcare settings. The definition of ‘biological agents’ includes any micro-organism which may cause infection and, as such, covers Covid-19.⁵ Employers must take steps to adequately control exposure to biological agents. One such step is the provision of suitable PPE. There are also monitoring and training obligations.

d. Personal Protective Equipment at Work Regulations 1992 (PPEW Regulations): The PPEW Regulations set out employers’ duties concerning the provision and use of PPE and RPE at work. Among other things, such PPE/RPE must be capable of fitting the wearer correctly and be effective to prevent or adequately control the risk(s) involved.

5. Generally, health and safety legislation does not create direct rights for employees to sue their employers for a breach of a relevant obligation. Rather, the Health and Safety Executive (HSE) is empowered to take enforcement action in respect of such breaches, and this may lead to criminal sanctions. However, an employee may have a direct cause of action against their employer where they blow the whistle about past, present or prospective health and safety dangers and are subjected to a detriment or dismissed as a result. A hospital employee who raises a concern about the negative effect of a colleague’s facial hair on their RPE would probably qualify for protection as a whistle-blower.

6. NHS employers also have a common law duty to take reasonable care of the health and safety of employees and third parties such as patients. A breach of this duty may give rise to a claim for personal injury. In order to succeed in a claim for personal injury, an employee would need to show that the employer breached a duty of care owed to them, that breach caused them to suffer an injury and it was reasonably foreseeable that the breach would cause that type of injury. Where an employer has breached its statutory health and safety obligations, this will help an injured employee establish a common law duty of care and that it was reasonably foreseeable that a breach would cause injury. However, in Covid-19 cases, the challenge would be to show that the employer’s breach caused the injury (e.g. they may have caught the disease at home or in a restaurant).

7. In addition to these statutory and common law duties, NHS employers are subject to the NHS Constitution which sets out the rights of staff, patients and the public. Although the NHS Constitution is a declaratory document which does not create new legal rights or obligations, all NHS bodies should ‘have regard to’ this in their decisions and actions.⁶ Among other things, the NHS Constitution emphasises the rights for staff to have healthy and safe working conditions and patients to be cared for in a clean, safe, secure and suitable environment.

8. What can be seen from this brief review of the applicable health and safety framework is that a failure by NHS employers to take necessary measures to control the risk of Covid-19 exposes them to serious legal risk including enforcement action, criminal sanctions, whistle-blowing claims and, potentially, personal injury claims from both employees and third parties. It would also undermine the constitutional aims of the NHS. For these reasons, the protection of health and safety is of paramount importance to NHS employers.

Protective equipment and the impact of facial hair

9. Currently, staff working in NHS hospitals are required to wear different types of PPE depending on the clinical setting.⁷ As far as face masks are concerned, in high and medium-risk clinical settings, staff must wear: (i) FRSM-type IIR masks for direct patient care and (ii) FFP3 respirators (a form of RPE) when conducting aerosol-generating procedures.

10. As discussed above, the PPEW Regulations require employers to ensure that PPE fits the wearer correctly. The HSE’s guidance on the correct use of RPE, including FFP3 respirators, provides that “Tight fitting respirators rely on having a good seal with the wearer’s face” and “facial hair – including stubble and beards – make it impossible to get a good seal of the mask to the face.”⁸ In order to prevent the leakage of contaminated air around the edges of the masks, it says the wearer should be clean shaven.

11. This presents a problem for NHS employers who are legally obliged to provide suitable PPE/RPE, which fits the wearer and effectively controls the risk. The obvious solution is to instruct staff who need to wear FFP3 respirators to be clean shaven. Although such an instruction reduces the risk of health and safety breaches, it increases the risk of employee disputes. Some employees with facial hair will feel upset about an instruction to be clean shaven. If they can show that that the instruction, in practice, caused particular disadvantage to a group of people with a protected characteristic under the Equality Act 2010 (to which they belong), then they may have a claim for indirect discrimination.

Indirect discrimination under the Equality Act 2010

12. The prohibition on indirect discrimination is set out in section 19 of the Equality Act 2010. It provides that person A indirectly discriminates against person B where:

a. A applies to B a provision, criterion or practice (PCP).

b. B has a protected characteristic for the purposes of the Equality Act 2010.⁹

c. A also applies (or would apply) that PCP to persons who do not share B’s protected characteristic.

d. The PCP puts (or would put) persons with whom B shares the protected characteristic at a particular disadvantage compared to others (group disadvantage).

e. The PCP puts (or would put) B to that disadvantage (individual disadvantage).

f. A cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

13. The term ‘PCP’ is not defined in law but is construed widely to cover formal and informal employment policies, rules and practices. Here, the PCP would be the requirement for staff who need to wear RPE to be clean shaven. ‘Disadvantage’ is also not defined in law, but it is understood to mean anything that a reasonable person would complain about, and it is enough for the employee to say (reasonably) that they would have preferred different treatment.

14. Which protected groups might say they are particularly disadvantaged by such a PCP?

a. Male employees: Male members of staff may say that the PCP requires them to change their appearance against their will and restricts their personal freedom to choose how they look.

b. Religious employees: Staff of certain faiths which mandate the wearing of beards (e.g. Islam, Orthodox Judaism and Sikhism) may say that the PCP forces them to contravene their religious beliefs.

c. Disabled employees: Staff with certain disabilities (e.g. those with arthritis in their hands, certain skin conditions or facial disfigurements) may say that the PCP is impractical and/or causes them distress.¹⁰

d. Gender reassigned employees: Staff undergoing, or who have undergone, gender reassignment and who have grown facial hair as part of the process of aligning their physical identity with their gender identity may say that the PCP causes them distress.

15. A claimant belonging to one such group would need to establish group and individual disadvantage. First, the impact of the PCP on employees belonging to the protected group is compared with the impact on employees that do not. A full discussion of how this comparative exercise is carried out is beyond the scope of this article. However, it is worth noting that it is enough to show that only some people with the protected characteristic are disadvantaged. Second, the employee must show that they have suffered the disadvantage personally; it is not sufficient to show that they belong to the protected group.

16. Once these hurdles have been overcome, the burden shifts to the employer to show whether the PCP is ‘objectively justified’. There are two elements to this:¹¹

a. First, the employer must show that there is a ‘legitimate aim’. The employer may point to any reason, provided it corresponds to a real organisational need and it is not discriminatory. Importantly, a wish to save cost on its own will not be a legitimate aim. However, cost considerations may be taken into account alongside other factors. Case law has established that an employer’s need to operate within a budget may be viewed as a legitimate aim that is about more than just saving costs.

b. Second, the employer must show that the PCP is a ‘proportionate’ means of achieving that legitimate aim. This involves balancing the discriminatory impact of the PCP against the reasons for applying it. Treatment will be proportionate if it is an appropriate and necessary means of achieving the legitimate aim, and there are no less discriminatory means available.

What is the NHS employer’s aim and is it legitimate?

17. There have been a number of cases arising in the sphere of religious discrimination which have considered whether uniform restrictions are objectively justifiable. Those cases have found that the following may qualify as legitimate aims: achieving a certain corporate image;¹² upholding religious and political neutrality;¹³ meeting client expectations;¹⁴ providing the best quality education;¹⁵ and protecting the health and safety of staff and third parties.¹⁶

18. Of particular interest to NHS employers is the decision in Chaplin v Royal Devon & Exeter NHS Foundation Trust (Chaplin). Here, the Trust forbade the wearing of necklaces at work with the aim of protecting the health and safety of staff and patients. Ms Chaplin was a nurse who wished to wear a crucifix necklace. She claimed indirect religious discrimination; however, the Employment Tribunal said the Trust’s principal aim of protecting health and safety was legitimate (and this was supplemented by a wish to present a polished image and for senior staff to act as role models to junior staff). The Trust had also acted proportionately by exploring alternatives, such as pinning the chain inside the uniform, which Ms Chaplin had refused.

19. Unhappy with the decision, Ms Chaplin brought a legal challenge against the United Kingdom before the European Court of Human Rights (ECtHR).¹⁷ She argued that domestic law had failed to give effect to her right to manifest her religion under the European Convention on Human Rights. Her complaint was consolidated with a similar challenge brought by the claimant in Eweida v British Airways Group plc (Eweida), where the employer had forbidden the wearing of jewellery in order to advance its corporate image. The ECtHR rejected the complaint in Chaplin but allowed it in Eweida. It decided that health and safety aim in Chaplin was of “inherently greater magnitude” than the corporate image aim in Eweida.

20. The aim behind an NHS employer’s requirement for staff who need to wear RPE to be clean shaven is the protection of the health and safety of staff and third parties. In the writer’s view, this is very likely to be legitimate. This is supported by the case law discussed above and also by the EHRC Services Code, which provides, expressly, that in the context of providing services, the protection of the health and safety of users is likely to be legitimate.¹⁸

Is the PCP a proportionate means of achieving the NHS employer’s legitimate aim?

21. In each of the cases referred to in paragraphs 17 and 18 above, proportionality was key. Where the employer had adopted a blanket approach, not allowing for the consideration of less discriminatory alternatives, the measures were found not to be proportionate (meaning the employer was liable for discrimination).

22. A case which is particularly pertinent here is Downey v Police Service of Northern Ireland.¹⁹ The employer, a public body, introduced a policy requiring officers within its armed response unit who needed to wear RPE (in the form of full-face FM12 masks) to be clean shaven. Mr Downey was an officer within that unit who had a moustache and beard. He shaved his beard but wished to keep his moustache because he felt it improved his personal appearance. A fit-testing assessment showed that the length and style of his moustache did not interfere with the seal of the FM12 mask. However, he was suspended from firearms duties and moved to the roads policing unit.

23. Mr Downey brought a claim for indirect sex discrimination. Although the protection of health and safety was found to be a legitimate aim, the Tribunal decided that the policy was not a proportionate means of achieving that aim. Among other things, the Tribunal found that:

a. The employer was not ready to deploy the RPE in question at the time the policy had been introduced. Accordingly, the PCP did not correspond to a current organisational need at the time it was introduced (rather it corresponded to a prospective need).

b. Neither the manufacturer’s guidance nor the HSE’s guidance, in fact, required wearers of FM12 masks to be fully clean shaven. Rather, they required the wearer to be clean shaven in the region of the face seal only.

c. There was no evidence that the employer had considered a less restrictive ban, such as a partial removal of facial hair in the area of the face seal only. The Tribunal said that this put the employer in “considerable difficulty” justifying the proportionality of the PCP.

d. The training provided by the employer on the use of RPE was inadequate. Appropriate training could have addressed the need to maintain the sealing area free from facial hair.

e. Although there had been consultation with the relevant trade union and no objections had been raised on behalf of its members, it was the case that factually inaccurate information had been provided to the trade union about the need to be clean shaven.

24. The Tribunal went on to say that had the employer demonstrated that it had properly considered whether a less restrictive policy might be sufficient to meet the legitimate aim (and had trialled any such policy), it may have been in a position to persuade the Tribunal that a complete ban was necessary. It had not done this, and the blanket imposition of the policy was fatal.

25. What’s clear is that the real battleground for NHS employers will be whether the requirement to be fully clean shaven is a proportionate means of protecting health and safety. Importantly, there are alternatives to FFP3 respirators, such as powered air purifying respirator (PAPR) hoods, helmets, visors and suits.²⁰ PAPR-style RPE does not rely on a tight face seal and so permits the presence of facial hair.

26. Could a bearded employee insist on the provision of PAPR-style RPE? Not necessarily. There are a number of reasons why PAPR-style RPE may not be an acceptable alternative to FFP3 respirators. First, it is more expensive, and the cost of providing it may exceed the budget allocated for the provision of RPE. Second, it is less readily available, and it may not be possible to source a sufficient supply at the rate needed. Third, additional training is required before use, and there may be insufficient resources and/or time available to deliver this. However, where the number of employees requiring PAPR-style RPE is relatively small, it will be harder for an NHS employer to discount it as an alternative.

27. Even where it is possible to discount alternatives, it is vital that the PCP is kept under review and continues to correspond to a current organisational need. For example, as the pandemic recedes, and fewer staff are needed to treat Covid-19 patients, the overall expenditure on RPE will reduce, supply should improve and there should be more time available to dedicate to training. Accordingly, it may be feasible to provide PAPR-style RPE in the future, even if it is not possible to do so now. Also, as the pandemic recedes, there should be greater scope to redeploy affected employees to lower risk areas of the hospital which do not require the wearing of RPE. If an NHS employer fails to keep the position under review, it may lose the ability to justify its actions.

Conclusion

28. A requirement to be clean shaven to facilitate the effective wearing of RPE will indirectly discriminate against certain protected groups. However, the aim of protecting health and safety is, in the writer’s view, very likely to be considered legitimate. The challenge will be demonstrating that the PCP is a proportionate means of achieving that aim. NHS employers should consult with affected staff, take care to consider alternatives and keep the position under review. Together, these steps should put them in the strongest possible position to defend discrimination claims.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

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Protection from indirect discrimination applies to all protected characteristics, apart from pregnancy and maternity.

10.

An employer’s duty to make reasonable adjustments will also be engaged where a PCP places a disabled employee at a substantial disadvantage.

11.

Public bodies, including NHS employers, will also be expected to demonstrate their compliance with the public sector equality duty.

12.

Eweida v British Airways Group plc [2010] EWCA Civ 80, https://www.bailii.org/ew/cases/EWCA/Civ/2010/80.html.

13.

Achbita v G4S Secure Solutions NV [2017] EUECJ C-157/15, https://www.bailii.org/eu/cases/EUECJ/2017/C15715.html.

14.

Sethi v Elements Personnel Services Limited, ET/2300234/18, https://assets.publishing.service.gov.uk/media/5ddd1b3340f0b65149fd521e/Mr_RD_Sethi_-v-_Elements_Personnel_Services_ltd-Case_Number_2300234_2018-Full.pdf.

15.

Azmi v Kirklees Metropolitan Borough Council [2007] IRLR 484, https://www.bailii.org/uk/cases/UKEAT/2007/0009_07_3003.html.

16.

Chaplin v Royal Devon & Exeter NHS Foundation Trust, [2010] 4 WLUK 25; Dhinsa v Serco and another, ET/1315002/09.

17.

Eweida and Chaplin v The United Kingdom [2011] ECHR 738, https://www.bailii.org/eu/cases/ECHR/2011/738.html.

18.

EHRC. Services, Public Functions and Associations Statutory Code of Practice, https://www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf (2011, accessed 8 November 2020).

19.

[2018] 4182/18IT, https://employmenttribunalsni.co.uk/OITFET_IWS/DecisionSearch.aspx. This case was brought before the Northern Irish Industrial Tribunal under local discrimination legislation similar to the Equality Act 2010. However, the decision is not binding in Great Britain.

20.

Health and Safety Executive. Respiratory Protective Equipment at Work: a Practical Guide, https://www.hse.gov.uk/pubns/books/hsg53.htm (4th edition, 2013).