4th June 2015

Dress Codes and Discrimination

The issue of dress codes in the workplace can be a delicate and controversial area. In the field of Employment Law it often appears in the context of discrimination claims, where employees in protected groups, be that religious groups or a particular sex, argue that the dress code imposed by their employer is indirectly discriminatory. The arguments tend to be along the lines that the dress code is a “provision criterion or practice” (PCP) which places their group at a particular disadvantage, especially if they are prevented from working because of the rule. In turn, employers need to show that the PCP is justified.

The recent case of Begum –v- Pedagogy Auras UK Limited (trading as Barley Lane Montessori Day Nursery) brought this topic to the floor again in relation to religious dress.

Ms Begum successfully applied for a job as a trainee nursery assistant. At the interview she wore what was described as a full length and flowing garment, namely a jilbab (often worn by Muslim females). The Nursery Manager was reported to have asked Ms Begum if she could wear a shorter garment to work. Importantly, the EAT accepted that Ms Begum was not told that she could not wear a jilbab at all; indeed various other employees at the Nursery wore shorter jilbabs or hijabs.

There was confusion as to what the “PCP” was in the case. The EAT ultimately agreed that the PCP was not specific to religious dress; rather it was a requirement not to dress in a way that endangers the health & safety of the employee, their colleagues or pupils.

In assessing whether this PCP placed Muslim employees at a disadvantage, the EAT concluded that there was no religious requirement to wear a jilbab that touched the floor (and therefore presented a health & safety hazard) and that other Muslim employees did wear religious garments at work. Accordingly, there was no group disadvantage to Muslim females. Furthermore, the EAT held that the Nursery had a legitimate aim of ensuring the health & safety of its staff and that the dress code was a proportionate means of achieving that legitimate aim.

What is the trend in Tribunals?

Lawyers in pin-striped suits aside, the trend in the Employment Tribunals over the years has tended to fall in favour of employers when it comes to dress codes; although the cases are all fact sensitive and influenced by the industry in question. Here are some examples:

• Veils: in Amzi –v- Kirklees Metropolitan Council the Employment Tribunal held that it was not discriminatory to require a teaching assistant to work “unveiled” as the wearing of a veil prevented effective communication with staff and pupils.
• “Smart and Conventional Dress”: the cases of Schmidt –v- Autosticks Bookshop Limited and Smith –v- Safeway dealt with similar issues regarding the image that the employer wanted to portray. In Schmidt, it was not discriminatory to require female staff to wear skirts (and not trousers) as equivalent restrictions on acceptable dress were imposed on male staff. In Smith the Claimant was dismissed for refusing to cut his long hair. This was held not to be discriminatory against him as a male, because a requirement of conventionally acceptable dress was imposed on all staff.
• Religious Jewellery: in 2013 the European Court of Human Rights (ECHR) considered various claims regarding, in particular, Christian employees wearing religious jewellery. The EHRC held that it was not unlawful to require a nurse to remove a necklace with a cross, for health & safety purposes; whereas it was unlawful for British Airways to prevent an Air Hostess from wearing the sign of a cross on a necklace as there was no good reason for the restriction.

Tailoring your dress code

If, as an employer, you do impose dress codes on staff, you need to be able to explain why it is required. The trend in the Employment Tribunal seems to show that if there is a genuine and justifiable reason for certain standards of dress being imposed (for the most part, health and safety reasons), the associated policy is unlikely to be discriminatory. When considering what staff should and shouldn’t wear, employers should address the following issues:

• What are we trying to achieve/ what is our aim?
• Why is it important?
• Is our dress code a proportionate way of achieving that aim?
• How does the offending garment or “look” affect the employee’s ability to perform their role?
• Does the garment present any health & safety risks?
• Are equivalent restrictions applied across the board?

Whilst most employers will not want to get too hung up on fashion, if you do want to impose a dress code, it will help if you can explain why it is needed in a suitably attired policy.

If you would like any advice on issues referred to in this article, please do not hesitate to contact the team on info@lawbydesign.co.uk or by telephone on 0161 437 0013.