Employers need dress codes but they must tread carefully before enforcing them with too much rigour
Employers know their corporate image is personified in the individuals they employ. Each autumn they are faced with the challenge of introducing and enforcing dress codes to a fresh cohort of school leavers and graduates without ending up dressed for a day in court.
Justification
A requirement to wear business dress, company uniform, a hair net or a hard hat will have been encountered by those who have held student jobs. But all employees need to understand what being appropriately and professionally dressed means for a particular employer. An introduction and explanation of dress code rules from day one is essential from both a safety and legal perspective. An apparently neutral dress code policy, affecting all employees equally, can amount to indirect discrimination if it puts those who share a protected characteristic at a disadvantage - unless it can be objectively justified. Case law shows how the courts will consider this issue and demonstrates that a dress code which might be considered reasonable for one employer may not be for another.
For employers, the key question is why a particular restriction is necessary. If it is for a health and safety reason, it is going to be much easier to justify.
Case law
One dress code case, Eweida v British Airways, has been progressing through the UK and European court systems for a number of years. Nadia Eweida wore a cross around her neck as a symbol of her Christianity. British Airways’ uniform policy required any religious items of jewellery to be covered up by the uniform. She was asked to remove her cross or conceal it under her uniform. She refused and was sent home without pay. After a number of negative press articles, BA amended its policy to allow the display of religious symbols. However, Eweida brought a claim of indirect discrimination on the grounds of her religion. When her claim was rejected by the UK courts, she took it to the European Court of Human Rights.
Proportionate
The court had to consider whether BA’s uniform policy was objectively justified – in other words, whether it was a proportionate means of achieving a legitimate aim. It found that projecting a corporate image was a legitimate aim but that the uniform policy was not a proportionate means of achieving it. In reaching this conclusion, the court noted:
- the cross was discreet and cannot have detracted from Eweida’s professional appearance
- there was no evidence that other items of religious clothing had any negative impact on the employer’s brand
- the airline was able to amend its uniform policy, so the earlier prohibition was not of crucial importance.
A similar case, linked the Eweida case, concerned a nurse, Shirley Chaplin, who also wanted to wear a crucifix but was not permitted to do so under her employer’s dress code. Her claim had a very different outcome. The ECHR found unanimously that there was no indirect discrimination. It held that the NHS Trust for whom she worked had a legitimate aim of protecting public health and the health and safety of nurses. Jewellery could spread infection or get caught on a piece of equipment, and so restricting its wearing was reasonable and proportionate.
Reality check
If a dress code is to project a certain corporate image, employers should carry out a ‘reality check’ to decide whether their assessment of the policy really stands up to scrutiny. Employers may feel that facial hair, tattoos or visible jewellery give the wrong impression to customers, but the Eweida case makes it clear that employers need to have more than just a general impression that this is the case, before placing a blanket restriction on such matters of personal appearance. In general, it is better to allow for some flexibility in any dress code and to consider any employee request to depart from the dress code on a case-by-case basis.
Joanna Dodd is a senior associate at law firm Clarion
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