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Dress codes
[ch 7: pages 259-261]Dress codes can discriminate if the employer imposes a requirement that disadvantages one group. In DWP v Thompson [2003] UKEAT 0254/03/2711, the EAT said that requiring men to wear ties is not necessarily discriminatory. It is lawful to impose rules on wearing specific items of clothing on one sex to promote “smartness”, as long as the same standard of smartness is applied to both sexes.
Dress codes can create particular challenges in the context of religious belief. The European Court of Human Rights (ECHR) has ruled that under Article 9 of the European Convention on Human Rights (the Convention), workers have the human right to manifest (i.e. display) their individual faith in the workplace, for example, by wearing religious adornments such as a cross, but that this is a qualified, not an absolute, right, which must be balanced alongside the employer’s need to achieve legitimate aims, such as protecting workplace health and safety:
Ms Eweida, who staffed a British Airways (BA) check-in desk and Ms Chaplin, a geriatric nurse, were both penalised for wearing the cross at work and brought claims for religious discrimination. Eweida won her claim before the ECHR. Her right to manifest her religion under Article 9 had been infringed. A fair balance had not been struck between her desire to wear a small visible cross to communicate her belief, and BA’s desire to project a particular corporate image. Other BA workers were allowed to wear items of religious significance such as turbans and hijabs without impacting negatively on the BA image, and BA had amended the uniform code, after the case was launched, to permit the visible wearing of religious symbolic jewellery, showing that it was not an issue of great importance to them.
By contrast, nurse Ms Chaplin lost her case because she had been asked to remove her cross at work for health and safety reasons. The ECHR said that hospital managers are in a better position to judge issues of clinical safety than courts. Requiring Chaplin to remove the cross was not disproportionate, and the interference with Chaplin’s freedom to manifest her religion was justified as necessary in a democratic society.
Eweida and Others v The United Kingdom Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10 [2013] IRLR 231
Most employers try to adopt a flexible approach to dress codes when it comes to respecting religious beliefs.
A tribunal will not normally interfere with an employer’s judgment as to what clothing is or is not a safety risk at work, for example, a manager’s assessment as to whether a garment is a trip hazard.
In Begum v Pedagogy Auras UK Limited t/a Barley Lane Montessori Day Nursery [2015] UKEAT/0309/13/RN, a nursery was not guilty of religious discrimination when it allowed a Muslim nursery worker to wear a jilbab but insisted on a style that was not too long and flowing, so as not to present a trip hazard to staff and children.
In 2013, the Equality and Human Rights Commission produced new guidance on dress codes and religious observance, available on their website. Acas has also produced an updated good practice guide on religious observance in the workplace: Religion and belief and the workplace: a guide for employers and employees, which covers issues such as dress codes, working hours, work-related socialising and other working practices that may impact on religious belief.
In 2015, the law changed to exempt turban-wearing Sikhs from any legal requirement to wear head protection at work (Sections 11 and 12, Employment Act 1989 amended by Section 6, Deregulation Act 2015). There is a limited exception for dangerous and hazardous tasks involving an emergency response, where a risk assessment has identified that head protection is essential for the individual’s protection, for example, a fire-fighter entering a burning building.
The exemption applies only to head protection. Sikhs must still wear all other necessary personal protective equipment. And employers must still take all necessary actions to avoid injury from falling objects, by putting in place such safe systems of work, control measures and other solutions such as signage and restricting access.
In a controversial new ruling, Achbita v G4S Secure Solutions [2017] C-157/15, C188/15, the ECJ ruled that there was no direct religious discrimination when G4S enforced a strict policy of neutrality in its dress code and dismissed a Muslim employee who insisted on wearing an Islamic headscarf. This was not direct religious discrimination, ruled the ECJ, because the policy prohibited all religious signs, so it was not treating one religion less favourably than another.
The ECJ accepted that the "neutral dress" policy could be indirectly discriminatory, placing Muslims at a particular disadvantage, but said that the desire to project an image of neutrality was a legitimate aim, as long as it is applied only to customer-facing roles and was applied consistently to all workers regardless of religion or belief. The case has been sent back to the Belgian national courts. In particular, the Belgian courts have been asked to consider whether it would have been reasonable for G4S to transfer Achbita into a role where she could not be seen by customers, instead of dismissing her.
Achbita v G4S Secure Solutions [2017] C-157/15, C188/15
Sexist dress codes hit the UK news headlines in 2016, after a receptionist was sent home without pay on the first day of her assignment at a leading accounting firm by an employment agency, for refusing to wear high heels. In response, the Women & Equalities and Petitions Committees produced a report on high heels and workplace dress codes – including requirements for women to wear make-up and revealing outfits – in January 2017, recommending that the law be strengthened. As Law at Work goes to press, the government has promised new guidance, to try to improve compliance.
A dress code including high heels “reeks of sexism”, said Frances O’Grady, TUC general secretary. “High heels should be a choice, not a requirement.” There are also obvious health concerns. The TUC has published guidance available online – Working feet and footwear (https://www.tuc.org.uk/sites/default/files/footwear.pdf).