Following this week’s CJEU decision on religious clothing, legal expert Alan Delaney considers the requirements employers can stipulate in a dress code
On the face of it, the task of drawing up rules on dress and personal appearance is fairly straightforward. However, the risks of getting this wrong are also significant and can include liability for unlawful discrimination, as well as damaging publicity, which can both take their toll on corporate reputation.
Headscarf cases: direct and indirect discrimination
The Court of Justice of the European Union (CJEU)has finally handed down its long-awaited decision in relation to two cases of female Muslim employees dismissed after wearing headscarves to work.
In the more important of the cases, G4S in Belgium dismissed a receptionist for breaching its policy of 'neutrality', which prohibited employees from wearing any visible signs case of their political, philosophical or religious beliefs. The CJEU found this did not amount to direct discrimination since the same policy applied to all staff.
On the more interesting question of whether it amounted to indirect discrimination, the CJEU had not been asked to determine the point. However, it expressed the view that pursuing a policy of neutrality could be a legitimate aim and that such a restriction in a customer-facing role may be considered necessary. It went on to suggest that the Belgian court (to which the case will now return) would have to consider whether redeployment, rather than dismissal, would have been possible.
Although the G4S case has been reported in some quarters as a decision confirming that employers can ban headscarves, this overstates the impact of the ruling. In particular, UK employers need to be aware that the CJEU was not determining the indirect discrimination claim. As such, despite this ruling, it would be open to a UK employment tribunal to take a different view in an appropriate case.
The best advice to employers is therefore to continue to take a cautious approach, based on cases of genuine necessity. As the previous cases involving the wearing of a visible crucifix have shown, a requirement imposed for health and safety reasons may be justified, whereas a wish only to maintain a consistent corporate image may not be.
In the other case, which arose from a French design engineer being dismissed after a customer complained about her wearing a headscarf, the CJEU (unsurprisingly) held that a customer’s wishes that an employee not wear a headscarf was not a ‘genuine and determining occupational requirement’. Discrimination based on customer preference is therefore not permissible.
High heels and grooming: legal claims remain low
The CJEU decisions are but the latest controversy around dress codes. In January the House of Commons women and equalities committee issued its High heels and workplace dress codes report. The review was prompted by a petition signed by more than 150,000 people following the controversial sending home of an agency worker last summer for not wearing high heels. It concluded that discriminatory dress codes are widespread and that the existing law is not fully effective in preventing this. Despite that outcome, the problem is less with the provisions of the Equality Act 2010, and more with the lack of legal claims pursued in relation to outdated gender-specific requirements.
This is perhaps surprising given the recent headlines in relation to these issues. At the end of last year, London's Dorchester hotel found itself in the firing line over an alleged list of 'grooming rules' for female staff reportedly including no oily skin, no hair on legs (even if wearing tights), full make-up and manicured nails. From what was reported, there are potential grounds to argue that female staff are required to comply with more onerous requirements than male counterparts, pointing to possible direct discrimination.
Equality: either gender can claim
Such a claim is open to either gender where there is less favourable treatment. Some years ago a male employee at the then Department for Work and Pensions (DWP) successfully challenged a policy requiring him and his male colleagues to wear shirts and ties, as being more onerous than the requirements on his female counterparts. While the DWP successfully appealed that decision to the Employment Appeal Tribunal, it altered the dress code for all staff in the wake of the publicity given to the case.
Employers looking at dress and appearance rules should also keep in mind that imposing unnecessary restrictions is highly likely to also narrow their talent pool. Recent Acas guidance on dress and appearance issues pointed out, for example, that one in three young people entering the labour market have at least one tattoo – which also raises the prospect of a potential indirect age discrimination issue.
Faced with these risks, most employers will, understandably, look to keep such rules to a minimum.
Alan Delaney is a director in the employment, pensions and immigration practice of Maclay Murray & Spens