Dress Codes at Work: Principles to keep in mind
Recent press attention on a Belgian employment case (more about this below) has focused attention on dress codes at work. What rules are employers allowed to impose regarding their workers’ clothes, head and face coverings, and general appearance? Does this differ where religion is concerned?
Well, as usual it is complex, but also as usual if you are reasonable, consistent and follow basic rules you won’t go too far wrong. Keep in mind the following principles.
An organisation often has an image which it will want to project – it is reasonable to expect an employee to fit in with and uphold this image while at work. A dress code is often the start of this, so if image is important to your organisation, for example presenting clean, smart and tidy care assistants or advocates, then draft an appropriate dress code and require staff to comply with this. Consider whether a uniform is required. Do health and safety requirements affect this, for example are overalls or protective headgear required?
Remember that Sikh workers can now choose to wear a turban instead of a safety helmet in almost all workplaces. This used to apply only to construction sites but a recent change in the law means that it now also applies to many other workplaces such as warehouses.
The key here is whether a worker can perform their role just as well while wearing an item of religious clothing. If they can, then it would be discrimination under the Equality Act to ask them not to wear it (except in regards to Sikh headgear as mentioned above). In one case last year (Begum v Pedagogy Auras UK Ltd) a Muslim woman turned down the offer of a nursery apprenticeship after being asked to wear a shorter jilbab so as not to pose a tripping hazard. She lost her discrimination case as the tribunal held that any discrimination against her was justified in order to protect the health and safety of staff and children.
In another case (Azmi v Kirklees Metropolitan Borough), a Muslim teacher also lost a discrimination case after being suspended for being asked to remove her veil while teaching. The employer was concerned that the veil prevented her from communicating effectively with the children.
In the recent Belgium case in the news, (Achbita v G4S Secure Solutions NV) a Muslim woman was dismissed for wearing a hijab (or headscarf) at work despite her employer’s blanket rule forbidding any customer-facing employee from wearing visible religious symbols or dress in order to preserve strict ‘neutrality’ in dealing with customers. The Belgian Court referred the matter to the European Court of Justice.
The case has yet to be decided, but a strictly non-binding opinion has been issued by an official known as the Advocate General. She has opined that there was no direct discrimination in this case and that although there may have been indirect discrimination, the employer’s policy was probably justified. Her view is that a ban on religious dress in the workplace applies equally to all employees – religious or otherwise. She points out that G4S would also have dismissed a Sikh man wearing a Turban, a Jewish employee wearing a kippah or a Christian wearing a crucifix. Her view was that the employer’s policy of neutrality was a legitimate one and that it was broadly proportionate to dismiss employees who did not comply with the dress code.
However, this opinion should be treated with extreme caution, and ultimately it is the decision of the European Court of Justice that matters. In the meantime, it is unlikely that a UK Employment Tribunal would take a similar view.
Good practice would be for employers to have a good and clear reason before asking an employee to remove or not to wear an item of religious clothing, and to try to find a way of accommodating religious belief into what the employer is trying to achieve where this is possible.
The wearing of religious symbols also generally comes down to balance of interests. In Eweida and Others v UK (2013), the European Court of Human Rights (ECHR) considered the cases of Ms Eweida who worked for British Airways, and Ms Chaplin a geriatric nurse, both of whom had sought to wear visible crosses, in breach of their employers’ uniform policies. The ECHR held that the domestic courts gave too much weight to British Airways’ wish to project a certain image. Ms Eweida’s cross was discreet, and there was no evidence that other employees wearing items such as turbans and hijabs had any negative impact on British Airways. Therefore, Ms Eweida should have been allowed to display her cross. However, the ECHR held that the reason for asking Ms Chaplin to remove her cross, the protection of health and safety in a hospital, was more important than her right to manifest her religion, so this was justified. So again, you can ask a worker to remove a religious symbol but only if you have a good reason to do so and can justify this.
Dress and General Appearance
It is perfectly acceptable to insist on smart dress and general appearance. Make sure that your policy states this, and follow up any breaches under your disciplinary procedure consistently with all staff.
You can require workers to have a conventional haircut if you wish and to have long hair tied back. It is acceptable to have different rules for men and women if you wish, but safest then to require both sexes to wear their hear in accordance with societal convention.
Tattoos and Piercings
Unless tattoos/piercings are religious requirements then they are not protected under the Equality Act and people who have them have no specific protection. It is reasonable to ask workers to cover tattoos and remove piercings while at work if this brings them in line with your dress code and organisational standards and image.
The main points to remember are:
- If the appearance of workers is important to your organisation, put in place a well thought out dress code;
- Apply the dress code reasonably and consistently;
- Use the disciplinary procedure if a worker fails to comply with the code after being warned;
- Only ask a worker to remove a religious item of clothing or symbol if you have a good and clear reason, eg if it would impede the worker from carrying out their job or would genuinely put at risk their health and safety or that of others.
Elizabeth Scholes is an independent Employment Law and HR Consultant who specialises in the Third Sector. A former employment solicitor, Elizabeth has worked extensively with charities and voluntary organisations, and has also been a Trustee at two large Birmingham charities.
Elizabeth advises on a wide range of employment matters including contracts, dispute resolution, dismissals, redundancies, and charity restructuring. She also provides HR and employment law training. For further advice and details of Elizabeth’s competitive charity rates, contact firstname.lastname@example.org or 07941 457580, or visit www.escholeshr.co.uk.
This article, by Elizabeth Scholes, was written for the August & September 2016 edition of Update Magazine.