Published: 05 April 2017
Jessica Bass looks at recent cases in respect of discriminatory dress codes, and the potential implications for UK employers.
You would have been hard pressed to miss the headlines last year relating to a London receptionist, working for one of the big four accountancy firms, who was “sent home for not wearing heels”. The news story sparked a petition calling for the law to be changed, so women cannot be forced to wear high heels to work whether in an expressly enforced dress code or not.
The Courts have considered dress codes to be unlawful before. There was the English case of Nadia Eweida, a devout Christian who was sent home from work by British Airways in 2006 after she refused to remove a visible cross, which contravened the company’s uniform policy. In 2013, the European Court of Human Rights (“ECHR”) held that the BA policy breached UK equality legislation.
Recently, the European Court of Justice (“CJEU”) considered the cases of two Muslim women, Samira Achiba from Belgium, and Asma Bougnaoui from France. Both women were fired for wearing a headscarf, Ms Achiba from G4S, and Ms Bougnaoui from Micropole. Like Mrs Eweida, both women complained that their right to manifest their religion had been violated. Both companies accepted this but stated that their dismissals were justified. In Ms Achiba’s case, the justification given was that the company required all employees not to wear visible religious symbols. However, Micropole dismissed Ms Bougnaoui following a client’s request that there be “no veil” next time, and her subsequent refusal to remove her hijab.
The CJEU found in favour of G4S but against Micropole, on the basis that the G4S policy of a neutral dress code was applied equally to all employees. In Micropole’s case, the CJEU made it clear that individual clients could not dictate a business’ employment decisions, and that their actions were directly discriminatory, as a result.
Both cases, coupled with Nicola Thorp’s complaint against Portico, highlight the risks of employers having strict dress codes.
However, health and safety reasons and business requirements may mean it is desirable, if not imperative, to impose a dress code in the workplace. While most employers would not accede to a client’s directly discriminatory request in the way that Micropole did, there is the possibility that an overly strict dress code will lead to a claim for indirect discrimination. This kind of discrimination can be justified where the code is a proportionate means of achieving a legitimate aim. Dress codes should therefore be drafted neutrally and should go no further than necessary to protect proper business interests. Indeed, in a separate case considered alongside Mrs Eweida’s case, the ECHR held that the employer’s aims in ensuring health and safety on a hospital ward were sufficient to justify a nurse to remove her crucifix.
The upshot is that employers are still able to exercise discretion for their workplace dress code, provided that any restrictions placed on employees are shown to be legitimate and proportionate. Employers should pay close attention to their reasoning when drafting and imposing a dress code or uniform policy, and should seek legal advice when looking to introduce or amend any such rules.