Dress codes have hit the headlines again recently for all the wrong reasons. In the UK a woman attracted over 100,000 signatures to her on-line petition after she was sent home by a company for refusing to wear high heels. Whilst in Europe the Court of Justice of the European Union (CJEU) has been wrestling with two cases which involve an employee’s right to wear an Islamic headscarf (hijab) in the work place.
Employers frequently require employees to comply with dress codes or appearance requirements. Often this is because of the professional image that they want to present or because of health and safety requirements. Whilst the courts have recognised this to be a legitimate aim, if employers get it wrong they do risk being exposed to claims of unlawful discrimination. Such claims could be on the grounds age, disability or gender reassignment as well as on the grounds of sex and race discrimination which are looked at in more detail below.
Whilst the employer in the “high heels” case above was not the subject of a discrimination claim when it sent home a woman from her job as a receptionist for refusing to comply with a dress code requiring her to wear two to four inch heels, it was the subject of some very unwelcome media attention, which resulted in it rather publically having to change its dress code to allow female employees to wear flat shoes.
Whilst the employee won in the court of public opinion on this occasion it does not necessarily mean that she would have been as successful had she brought a sex discrimination claim in the employment tribunal.
Treating a woman less favourably than a man in the same circumstances will amount to direct sex discrimination. However, the courts have held that having different requirements for men and women in a dress code will not amount to sex discrimination where the dress code applies a conventional standard of appearance and taken as a whole, rather than item by item, neither gender is treated less favourably in enforcing that principle.
The key issue therefore when setting a dress code will be to ensure it is not more onerous for one gender than another. In this case an employment tribunal may have been interested in the health and safety implications of women being required to wear high heels for a prolonged period. For example, expert podiatrists have stated that there are serious health concerns linked to wearing high heels for significant periods of time, which can increase the risk of osteoarthritis. It is likely that these health and safety risks would compare less favourably with the requirements of the dress code for men in this case.
Dress code requirements can also be discriminatory where they restrict employees’ rights to wear an item of clothing or jewellery which is associated with their religious beliefs, such as a veil or a cross. These cases often depend on whether the implementation of the dress code can be considered to be a genuine occupational requirement and is applied neutrally to all employees.
The difficulty for employers in correctly judging where this balance lies is highlighted by two cases that are currently being considered by the CJEU. An Advocate General in the case of Achbita v G4S Secure Solutions NV has given an Opinion that a company’s dress code, which banned employees from wearing any visible religious, political or philosophical symbols in the workplace, did not amount to direct discrimination when it was used to prevent a Muslim employee from wearing a hijab.
In this case the ban affected all employees equally. It was not targeted at one or more particular religions or against religious beliefs in general. Even if it did amount to direct discrimination, the Advocate General believed that the headscarf ban could be regarded as a genuine occupational requirement, bearing in mind the employer’s desired objective of religious and ideological neutrality. The imposition of the dress code was both appropriate and necessary for achieving this objective and it could not be achieved by more lenient means.
Whereas a different Advocate General in the case of Bougnaoui v Micropole SA concluded that an employee’s dismissal for wearing a hijab when in contact with customers of the employer’s business, in contravention of a direct instruction from her employer constituted unlawful direct discrimination on the grounds of religion or belief.
The Advocate General observed that discrimination would only be lawful if based on an “occupational requirement”, which must be “genuine” and limited to matters which are absolutely necessary in order to undertake the professional activity in question.
These contrary opinions are not helpful for employers but the common theme from these cases is the need for a genuine occupational requirement underpinning the policy and that the aim of the dress code could not be achieved by alternative means.
Employers should therefore think carefully about the contents of any dress code, including considering the following questions:
- What are the reasons why the organisation wants to implement a dress code?
- Is there a genuine business requirement for the policy?
- Do the requirements set out in the policy apply to all employees equally; for example, to men and to women (bearing in mind that it is not necessary for both sexes to wear the same but there must be equivalent standards)?
- Are there any health and safety implications?
- Could the restriction on a particular kind of clothing or jewellery be deemed to be of religious significance?
Finally if you are thinking about introducing a dress code it is also advisable to consult your employees before implementing it. This is not a legal requirement but can help flag up issues at the start rather than further down the line when it may already be too late!
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