Employer’s requirements need to be fair, proportionate and non-discriminatory. A dress code should not directly discriminate against an employee, or indirectly discriminate against an employee unless the requirement can be objectively justified. Employers should have fair and clear reasons for dress and appearance requirements especially where they are restricting or enforcing what an employee may wear.
to remember when implementing a dress code:
It should be proportionate, i.e. strictly necessary, and have regard to the functions undertaken by the employee;
It should apply a comparable or equivalent standard for staff, although it may have different requirements. For example a dress code may stipulate ‘business dress’ which may impose different requirements for men and women;
Reasonable adjustments must be made for disabled people;
As with all policies, a dress code should be consistently applied and reviewed regularly.
Employers should be attentive to difficulties that might arise if they impose the same dress requirements on all of their employees, as this may indirectly discriminate against employees of a particular religion or holding a certain belief. For example, if a food processing business or restaurant imposes, for health and safety reasons, a ban on people having beards, this may indirectly discriminate against employees whose religious beliefs require them to have a beard. Unless an employer can objectively justify the policy, this will be indirectly discriminatory on the basis of religion or belief and/or race. A better approach might be to provide workers with ‘beard nets’ to avoid the risk of hair falling into food.
Similarly employers will want to be very cautious about restricting other items that are worn for genuine religious reasons; e.g. wearing a cross or crucifix, a face covering e.g. a hijab or a turban. If for example there are health and safety concerns about the wearing of a hijab, conversations with the employee about potentially wearing a shorter length hijab or tying it in a different way may alleviate such concerns. Any restriction should be connected to a real business or safety requirement and should be capable of objective justification.
In the case of Eweida -v- British Airways, the purpose of the company’s uniform policy was to ensure that its airport check-in staff presented a professional image of the company and its brand. The European Court of Human Rights ruled that those were legitimate aims but that they were not sufficiently weighty to justify banning a member of the check-in staff, who was a practicing Christian, from wearing a small silver cross around her neck when it was discrete and did not actually detract from her professional image.
In the case of Chaplin -v- Royal evon & Exeter NHS Foundation Trust, the purpose of the hospital’s uniform policy was to promote health and safety. One of the risks it tried to address was where a distressed patient might grab a nurse’s necklace and injure them, or where a dangling necklace might infect a patient’s wound. For this reason, nursing staff were banned from wearing necklaces - this rule applied to all necklaces and inevitably applied to crosses and crucifixes too. The European Court of Human Rights ruled that the hospital’s aims were legitimate and, unlike in the Eweida case, they were sufficiently important and weighty given the real risks that existed to justify the ban on all necklaces, even those that were being worn for genuine religious reasons.
In the cases of Achibita -v- G4S Secure Solutions and Bougnaoui -v- Micropole Univers, the Court of Justice of the European Union ruled that it would amount to direct religious discrimination for an employer to give in to a customer’s demand that a specific employee, who was also a Muslim, should not wear a veil when dealing with the customer. The Court also ruled that a dress code policy that is adopted to show “neutrality” towards all customers by banning all customer-facing employees from wearing any visible signs of their religious, philosophical or political beliefs and which is applied consistently to all such employees of all religions and beliefs could be legitimate, so long as it was strictly necessary and restricted to customer-facing staff only. The Court sent the matter back to the original court in Belgium to assess whether the relevant conditions existed.
Employers need to be aware of their obligation to make reasonable adjustments in respect of people with disabilities and should be conscious of the difficulties that could arise in this respect if a standard dress code is applied uniformly. For example, a policy requiring all staff to wear certain items of clothing could present difficulties for staff that have limb related disabilities.
In the case of Dean -v- Abercombie & Fitch, the company had a “look policy” in one of its London stores that required employees on the shop floor to wear a short-sleeved polo shirt. The Company claimed that this policy was needed to “exude the Abercrombie brand and lifestyle”. Miss Dean, a disabled person, who was born without a left forearm and wore a prosthetic limb wished to wear a long-sleeved cardigan over the polo shirt to cover her prosthetic limb. Some managers in the store allowed her to do so, thus indicating that it was reasonable to adjust the policy. However, another manager subsequently objected as she considered that wearing the cardigan breached the “look policy”. For refusing to wear the cardigan, the manager transferred Miss Dean to a storeroom job. This insensitive treatment upset Miss Dean An industrial tribunal ruled that the failure of the manager to adjust the “look” policy for Miss Dean was an act of disability discrimination.
It is reasonable to set a standard of dress or appearance for both women and men, for example, ‘business’ or ‘smart’ dress. It is permissible to have different dress requirements for men and women in a dress code where a conventional standard of appearance is required and where neither sex is treated less favourably. Dress codes should not be more onerous for one sex and comfort and health and safety issues may be of relevance, and should be applied consistently to men and women. Employers will have to ensure that its dress code is appropriate for pregnant employees, while also ensuring that the health and safety of the employee is safeguarded.
An employer should also consider the application of its dress code in terms of any transsexual employees – if a transsexual woman is prevented from wearing a skirt where other women would be permitted to, this could amount to direct discrimination because of gender reassignment. Likewise a dress code should not present difficulties for a transsexual employee who is in the process of transition to the other sex.
In the case of Smith v Safeway plc, a male delicatessen assistant in a supermarket was dismissed when he refused to cut his hair, which he wore in a ponytail in contravention of the rules for male staff. Men had to have tidy hair not below collar length and unconventional hair styles were not allowed. Female staff were allowed to wear their hair long. The rule was based not on hygiene but on appearance. The English Court of Appeal ruled that the rule was not discriminatory, as the same standard of conventional appearance was applied rigorously to both male and female employees. The Court identified two key issues: first, the effect of the dress code overall had to be considered, not item by item; second, "a code which applies a conventional standard of appearance is not, of itself, discriminatory."
While the facts of this case might be somewhat dated in terms of what are considered conventional or unconventional hair styles, the legal test is still valid. It also serves well for employers to be conscious that terminology such as ‘conventional’ or ‘business dress’ will change over time.
Employers in Northern Ireland will generally have dignity at work policies which prohibit any form of dress likely to impinge on developing and sustaining a good and harmonious working environment. Consequently, sometimes employers can have valid reasons for restricting what is worn, for example certain sportswear in the workplace. For further information please see our publication:
In conclusion, employers can of course ask employees to dress in compliance with a code but will need to clearly set out the reasons and where necessary facilitate adjustments for staff protected by the equality laws