Whilst it may be advisable for your business to have a dress code to ensure consistency of service and to maintain high standards of appearance in the workplace, particularly if employees are customer facing, you must also ensure that your dress code is not discriminatory or applied in a discriminatory way. If you would like assistance in drafting, reviewing or updating a dress code related policy, please contact our discrimination law solicitors. Some general pointers for employers about dress codes and discrimination can be seen below.
We'll be covering:
- What is religion and belief discrimination?
- Who is protected from religion and belief discrimination?
- How does religion and belief discrimination apply to workplace dress codes?
- What does this mean for you as an employer? Religion and belief discrimination case law examples
- What is Sex discrimination?
- What does Government Equalities Office guidance on dress codes and sex discrimination say about dress codes?
- What should I consider when developing a dress code policy?
What is religion and belief discrimination?
Discrimination in the workplace on the grounds of a religion or belief (or lack of it) may be unlawful. ‘Belief’ covers any genuinely held religious or philosophical belief and may also include some political beliefs too.
The following types of religion or belief discrimination will be unlawful under the Equality Act 2010 (EQA):
- Direct discrimination – the discrimination is because of the religion or belief. For example, an employer rejects a job applicant simply because they are of a particular religion
- Indirect discrimination – the employer has a rule or policy (such as a dress code) which, although applied to all employees equally, disadvantages an employee of a particular religion or belief and the employer can’t show ‘objective justification’ for the treatment
- Harassment related to the employee’s religion or belief
- Victimisation of someone who has made or is making a complaint about religion or belief discrimination.
Who is protected from religion and belief discrimination?
As with other forms of discrimination, protection from religion or race discrimination in the workplace is wider than for employment rights, such as protection from unfair dismissal. It covers job applicants, employees, workers and even some self-employed people (broadly, if they are contracted personally to do the work).
It’s important to note that, unlike an unfair dismissal claim, an employee does not need two years’ service to bring a claim of religion or belief discrimination and that compensation for unlawful discrimination is not capped.
How does religion and belief discrimination apply to workplace dress codes?
Whilst it is not unreasonable for an employer to impose a dress code, employers should be aware of the legal risks when setting out guidelines about how to dress and other areas of appearance, such as how employees choose to groom themselves. The impact this can have on employees’ ability to demonstrate their religious and cultural beliefs, particularly for indirect discrimination, must be considered.
If an employer operates a dress code which prevents workers wearing items of clothing such as headscarves, crosses or other jewellery, or restricts the way they dress, then this could lead to a claim of unlawful discrimination on grounds of religion or belief.
It is possible for this to be direct discrimination – if an employee was dismissed for refusing to remove a veil and a rule about face covering was not applied to other employees, for example. But more commonly it is indirect discrimination – where a dress code is applied to everyone but adversely impacts an employee of a particular religion. Once an employee has demonstrated this, then it’s up to the employer to show that the dress code is objectively justified. If they can do this, the discrimination won’t be unlawful.
Establishing justification isn’t easy though; the employer has to show:
- A legitimate aim (a real business need).
- That the dress code was a proportionate means of achieving that aim – it was reasonably necessary and there wasn’t a less discriminatory way of going about it.
There is also a human rights angle. Enforcement of dress codes can be a breach of the right to manifest belief, which is protected by the European Convention on Human Rights (ECHR). Currently, the ECHR has to be taken into account in interpreting UK legislation, including the Equality Act, but after Brexit it is unlikely that this previous guidance will be departed from.
There have been an increasing number of cases over recent years, from which employers may learn how to better manage the risk of discrimination in this area.
Under Article 9 of the European Convention on Human Rights (ECHR) individuals have an absolute right to hold a religion or belief, but displays of that religion or belief may be limited in certain circumstances. For example, if other Convention rights are relevant in the circumstance, these have to be balanced. The ECHR Code provides examples of where dress code might be indirectly discriminatory and so would need to be objectively justified in order to be lawful.
What does this mean for you as an employer? Religion and belief discrimination case law examples
There have already been several cases concerning religious dress and symbols. The UK case law indicates that it may be possible for employers to impose restrictions in dress code, even if that conflicts with an employee’s wish to manifest their religious belief by wearing particular clothing or jewellery.
Jewellery in the workplace
If an employer introduces a ‘no jewellery’ policy in the workplace and this cannot be justified on health and safety reasons, a Sikh worker who wears a Kara bracelet as an integral part of their religion may have a valid complaint against this rule as indirect discrimination. Unless there was an objective justification and a ban on jewellery was a proportionate means of achieving a legitimate aim, the employer should consider allowing an exception to this rule. The Government Equalities Office guidance, ‘Dress codes and sex discrimination: what you need to know’ says: ‘employers should be flexible and not set dress codes which prohibit religious symbols that do not interfere with an employee’s work’ and so careful consideration should be given to this point.
In the well-known case of Eweida v British Airways, a member of British Airways’ check-in staff complained that the uniform policy banning visible jewellery, prevented her from wearing a plain silver cross as an expression of her Christian faith. Ms Eweida claimed indirect discrimination, but the tribunal dismissed her claim on the basis that the policy did not put Christians at a ‘particular disadvantage’. The wearing of a visible cross, although motivated by her faith, was a personal decision by Ms Eweida and not (according to several Christian witnesses and the views of the Christian Fellowship) a requirement of Christian faith or scriptures. On appeal, the Court of Appeal upheld the tribunal's decision stating that the policy was justified as a proportionate means of achieving a legitimate aim.
It was decided by the European Court of Human Rights in 2013 that the uniform policy was incompatible with its employees’ freedom of religion and, in particular, the claimant’s right to manifest her religion through the wearing of a crucifix. While it was understood that British Airways had a certain corporate image it wanted to project, Ms Eweida's cross was discrete, would not have detracted from her professional appearance, and would not really have encroached on the interests of others. Also, there was no evidence that employees' wearing of authorised items of religious clothing, such as turbans and hijabs, had a negative impact on British Airways’ brand. The fact that British Airways later amended its uniform policy to allow for the wearing of symbolic religious jewellery also demonstrated that the previous policy was not that critical to it. However, at a similar time, the ECHR rejected a similar complaint by Mrs Chaplin, a nurse employed by Royal Devon & Exeter NHS Foundation Trust. Whilst Chaplin had a right to manifest her religion, the distinction in the case was that there was an objective justification on the grounds that it was protecting the health and safety of staff and patients and was a proportionate means of achieving a legitimate aim.
Religious veils and headscarves in the workplace
Again, this has been an area of contention. In the case of Azmi v Kirklees Metropolitan Borough Council the EAT decided that an employer’s instruction to a bilingual support worker to remove her full face veil, which covered all of her face except for her eyes, while teaching, was not discrimination. It was a proportionate means of achieving the legitimate aim of providing the best education, which was a key requirement of her job.
In Europe, the case of Achbita and another v G4S Secure Solutions NV the ECJ found that where an employer has a policy of upholding political, philosophical or religious neutrality in customer-facing roles, this must be regarded as a legitimate aim. The ECJ added it was for the Belgian judges to determine whether Achbita may have been a victim of indirect discrimination, if the rule put people of a certain faith at a disadvantage. However, the ECJ went on to state the rule could still be justified if it was ‘genuinely pursued in a consistent and systematic manner’ with a ‘legitimate aim’, such as protecting a public ‘image of neutrality’. If the ban applied only to workers who interacted with customers, then it ought to be regarded as proportionate. But the Belgian court should also consider whether it was possible for the employee to have been offered a post that didn’t involve visual customer contact. This contrasted with the ruling of Bougnaoui v Micropole SA. In that case a customer objected to an employee wearing a headscarf and so the employer asked the employee not to wear it. The employee refused and was dismissed. The ECJ held in this case that the dismissal was directly discriminatory as it came from customer preference not to have services provided by a worker wearing an Islamic headscarf, which could not be considered an occupational requirement or a company-wide policy relating to all religious clothing and symbols, as in the case of Achbita. Whilst these are European cases, they act as good guidance given that there is unlikely to be much change in discrimination law following Brexit and so UK case law is likely to follow a similar path. However, Achbita should be read with caution given the historically different approach to secularity here and in France.
Other religious clothing in the workplace
In Begum v Pedagogy Auras UK Ltd a nursery didn’t discriminate against a Muslim job applicant when it made clear during the interview that it had a requirement for employees to modify clothing that could be a trip hazard. Women were allowed to wear jilbabs, even full length, so long as they didn’t infringe this rule. This was not a provision, criterion or practice which indirectly discriminated against Muslim women who wore jilbabs and even if it had been discrimination. The EAT said it would have been justified on health and safety grounds on the facts of this case.
Other religious symbols in the workplace
In the case of Dhinsa v Serco an employment tribunal rejected a discrimination claim by a prison officer based on a company rule that kirpan knives could not be worn inside prisons except by Sikh chaplains. The rule was justified by the legitimate aim of ensuring safety and security in prisons. The tribunal considered the number of individuals affected by the ban; the differing roles of prison officers and chaplains; the prevalence of prison assaults; and the fact that the company had considered other options. The tribunal found that although it did place Amritdhari Sikhs at a particular disadvantage because of their belief in wearing the five Sikh articles of faith, it found that overall, not allowing a prison officer to carry a kirpan was a proportionate means of achieving a legitimate aim of protecting health and safety of prisoners, prison staff and other visitors to the prison and so the employee’s indirect discrimination claim failed.
Beards in the workplace
In the case of Sethi v Elements Personnel Services, an employment agency’s ‘no beards’ policy was indirectly discriminatory against Mr Sethi on the grounds of his religious belief, because it was fundamental to his Sikh faith that he have an uncut beard. In this case the employer had a blanket ban on beards, it had not asked its client whether they might relax the rule in certain circumstances, such as for Sethi because of his religious beliefs. This played a large part in the tribunal’s decision that this was an indirectly discriminatory policy.
What is a clear thread throughout these religious and belief discrimination cases is the importance of consistency and proportionality in dress codes by employers. You must also be careful to ensure that you’re consistent in the application of the policy and in the handling of any resulting disciplinary action, as any difference in treatment may amount to discrimination.
What is Sex discrimination?
Sex Discrimination under the EQA, includes:
- an employer discriminating directly by treating a job applicant or employee less favourably than others because of sex;
- an employer discriminating indirectly by applying a certain policy or practice in a way which disadvantages job applicants or employees of one sex without being objectively justified;
- an employer subjecting a job applicant or employee to harassment related to sex, sexual harassment, or less favourable treatment because they reject or submit to harassment; and
- an employer victimising a job applicant or employee because they have made or intend to make a sex discrimination complaint under the EQA, or because they have taken action or intend to take action relating to rights under the Act.
Again, an employee does not need two years’ service to bring a claim of sex discrimination and compensation for unlawful discrimination is uncapped.
How does sex discrimination apply to workplace dress codes?
Whilst there is a difference in treatment if men and women are required to wear different uniforms or adhere to different dress codes or standards of appearance, it is whether those ‘differences’ are ‘less favourable’ which is relevant when looking at whether a dress code is discriminatory. If the standards set are equivalent overall and are ‘even-handed’ when considered in the context of the whole policy, it is unlikely that a policy will be discriminatory.
For example, in the case of Smith v Safeway, the court upheld a tribunal's decision that it was not discriminatory against men for the employer to require only men to keep their hair short, in the context of a dress code which required women to keep their hair tidy and tied back, if long.
In the case of Department of Work and Pensions v Thompson, the employment tribunals appeared to develop a two-stage test:
- Did the dress code seek to apply similar levels of smartness to men and women (was it ‘even-handed’).
- Whether the particular item or rule at issue is the only way of achieving the level of smartness required by the employer.
In that case it was decided by the EAT that the Employment Tribunal should consider whether wearing a collar and tie was the only way in which a man could be deemed smart enough, and if not the policy was discriminatory against men, as women had more freedom to choose what they considered to be smart clothing.
In Smith v Rees it was decided that a dress code was discriminatory as the employee was given a top to wear which she felt was too tight and showed too much cleavage. The employee explained that she did not feel comfortable wearing the top and refused to do so choosing to wear a more modest top and was dismissed for not wearing her uniform. The tribunal concluded that a male employee would not have been required to wear a uniform that was ‘skimpy and inappropriate’, and that therefore the waitress had been treated less favourably on the grounds of her sex. The employer had also made remarks about the employee being a ‘prude’ for not wearing the uniform and that ‘it was good to show a bit of cleavage’ and suggested she wear red lipstick to ‘tart herself up a bit’. These comments were found to be harassment.
What does Government Equalities Office guidance on dress codes and sex discrimination say about dress codes?
In 2017, an online petition demanding that employers be prevented from requiring women to wear high heels was the subject of a parliamentary inquiry. A report, ‘high heels and workplace dress codes’ was commissioned and recommended, among other things, that the government should consider legislating to amend the ‘less favourable treatment’ test.
In May 2018, the Government Equalities Office published ‘Dress Codes and sex discrimination: what you need to know’. This is only a short guide and advises that although dress codes do not have to be identical for men and women, they need to be equivalent. Therefore, it is better to steer away from gender specific requirements, as any requirement to wear high heels, make-up, skirts, have manicured nails, certain hairstyles or specific types of hosiery is likely to be unlawful, if there is no equivalent requirement for men. Any requirement for a man or woman to dress provocatively or in a way that could lead to harassment is also likely to be unlawful. It is also advisable to consult with employees if a change is to be made to your business’ dress code. This guide only looks at the legal obligations of employers and the rights of employees, not the wider category of employee ‘in employment’ under the EQA.
What should I consider when developing a dress code policy?
If you would like specific advice on drafting, reviewing or implementing your business' dress code, please contact our employment law advisers for bespoke assistance. For general guidance on what to consider, the below should assist:
- Before drafting a dress code, it is important to think carefully about why you need one and what you are aiming to achieve. It is important to consider whether there is a genuinely good reason for a dress code, such as hygiene or health and safety, rather than personal preference on how employees should look. The employer should state the reasoning towards the beginning of the dress code so that it is clear to employees why it exists as well as why it is important to comply.
- It is important to consider flexibility and discretion in the policy so that you are not imposing dress codes and requirements about appearance too rigidly, but also be careful to apply policies consistently.
- If you make a dress code or appearance decision that the employee believes is not in their favour, you need to be able to give evidence why the decision is required to meet a legitimate aim and that it is reasonable, proportionate and fair.
- Consult with employees and consider the reputational and employment relations issuesthat might stem from a dress code policy if the employees are not in favour of it or its contents.
- It is not just the banning of certain items that can be problematic in a dress code – if you ask staff to wear a uniform or dress in a particular style, this can cause issues for those whose religion requires them to dress modestly, for example.
- It is important to be aware of all protected characteristics and types of discrimination when implementing any policy and dress codes are no different.
Ensure that you review and update your dress code at regular intervals, as with your other employment policies, and do seek professional advice if you are unsure, our employment solicitors would be happy to help.
