Call the fashion police, that dress code is discriminatory… or is it?

Can you make your receptionist wear heels? What about a ban on head-wear? Can you stop your staff wearing a badge for their political party of choice? Dress codes have long been a battleground between employers and their staff, and as a number of recent cases show, it can be a difficult line to draw between keeping staff looking smart, and keeping on the right side of the law. You could face a discrimination claim if your policy places employees at a disadvantage because of a protected characteristic such as their sex or religion.

Heels or flats?

As you might have seen in the news, a female receptionist has begun a petition to ask the government to address allegedly sexist dress codes after reportedly being sent home for refusing to comply with a requirement to wear between two and four inch heels at work. Much of the media coverage has labelled this policy sexist and some have raised concerns that this policy may amount to sex discrimination under employment law.

Whilst her petition is receiving a lot of attention, her employer’s dress code policy is not actually unlawful. Simply because men are not also required to wear heels does not make the policy inherently unlawful; consider that there could well be a similar policy that men must wear ties (and women do not), which is not unlawful discrimination. An employer is permitted to have different dress codes for men and for women, provided that the dress code applies an equal overall standard of appearance between the sexes.

Keeping it neutral

Employers also need to respect their employees’ religions when deciding on a dress code. In the recent case of Achbita and anor v G4S Secure Solutions, which was referred to in the European Court of Justice (“the ECJ”), a Muslim woman who worked as a receptionist for a security firm was told by her employer that she would not be allowed to wear a headscarf for religious reasons. Ms Achbita claimed that she was being discriminated against because of her religion.

Initial comments by the ECJ suggest that her employer might be able to defend the claim based on its policy of complete neutrality. Her employer had a policy which prohibited employees from wearing any visible signs of political, philosophical or religious beliefs and from giving expression to any ritual arising from them. The company argued that it was vital to appear completely neutral to its clients. The ECJ suggested that because the policy was so wide and so strictly applied, it was not discriminatory against Ms Achbita on the grounds of her religion.

Ban on headscarves was unacceptable

In the similar case of Bougnaoui and anor v Micropole SA, which has also been referred to the ECJ, a design engineer was asked by her employer not to wear a religious headscarf when at one of its client’s premises. As with the case above, Ms Bougnaoui brought a claim for discrimination based on her religion.

The employer in this case had received complaints from its client that Ms Bougnaoui’s headscarf had made its staff feel uncomfortable, and the employer was keen to maintain a good relationship with this client. This employer also said that it wanted to appear neutral, although its policy was less clear and strict than the one in the case above. Early comments from the ECJ in this case, however, have indicated that the employer’s actions here were discriminatory. The ECJ has indicated in this case that an employer should only be able to restrict an employee from wearing religious items such as a headscarf where it is strictly necessary, such as for health and safety reasons.

So why the difference?

Our view is that the reason for the contradictory views expressed by the ECJ comes down to the clarity of the dress code and the motivation behind its implementation. The policy in the first case (Ms Achbita) focused on complete neutrality, it was clear, strictly applied and applied to all religions and beliefs indiscriminately. In contrast, in the second case (Ms Bougnaoui) her employer was simply reacting to a discriminatory comment made to it by its client, and was focused on maintaining the business relationship only. Any policy it did have in place was less wide, had no clear rationale, and was not as strictly applied. That said, the views do now put businesses in a difficult position, as the ECJ has arrived at completely opposite decisions in respect of very similar facts.

What does this mean for you?

We will have to wait and see how the courts resolve the cases above, however, what is clear is that employers will have to tread carefully in terms of discrimination issues if they want to implement a dress code. You need to think carefully about whether the requirements will affect men and women differently or prevent someone from expressing their religion or other characteristic without good reason. If an employee has a good reason for challenging the dress code, it is usually good practice to take this seriously and investigate their concerns.

That said, employers can still be confident in setting a sensible dress code. For example, it is perfectly acceptable in a professional services environment to have a “no shorts or sandals” rule… even in this heat! If you have any concerns, or are thinking about bringing in a dress code, just give our Employment Team a call on 01603 281153 and we will be happy to help.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.