Case law confirms appropriate and necessary restrictions will be allowed

Dress codes are used to enhance corporate image. Most employers impose restrictions on piercings, tattoos, hairstyles and make-up. Often the rules include employees’ clothing and appearance, and can potentially be discriminatory and may even breach their human rights.

Employers do not have a wide discretion to control the appearance of their staff. However, a practice restricting clothing associated with a particular religion, culture or sex will not automatically be unlawful. Organisations can insist on employees adhering to a dress code provided the reasons behind it can be justified as being reasonable, appropriate and necessary. But employers also need to be sensitive to the requirements and conventions of their employees’ cultures and belief systems and should explore with staff whether their objectives can be achieved in a less restrictive way.

Employers may not be able to justify banning religious dress and symbols in the workplace. In Eweida v British Airways, a Christian employee was sent home after refusing to conceal a cross visible over her uniform, contrary to a policy prohibiting the wearing of visible adornments. Eweida claimed discrimination and the European court ruled BA’s uniform policy impinged on her religious freedom.

Clothing retailer Abercrombie and Fitch’s employee ‘look policy’ was recently criticised by the US Supreme court when ruling in favour of a Muslim woman denied a job at the clothing store because her headscarf did not fit with this dress policy. Previously the company was found liable for religious discrimination for dismissing a Muslim women for refusing to remove her hijab at work.

In Azmi v Kirklees MBC an employer was held not to have discriminated by asking a Muslim employee to remove her veil when teaching children. The employer argued that children learned better when they could see the whole of a person’s face and the court agreed this practice was justified and proportionate, especially as the school allowed the employee to wear her veil when not teaching.

Employers can justify a dress code if they can show the rationale behind it is proportionate and reasonable. In the case Begum v Pedagogy Auras an employment tribunal held a nursery did not discriminate against a Muslim job applicant by asking her to wear a shorter jilbab while at work, as a longer dress was a trip hazard to children and staff. The employee was not told she could not wear the jilbab and various options were discussed, although no conclusions reached. The court held there was no discriminatory practice in place: a requirement that clothing should not present a tripping hazard did not in itself discriminate against Muslim women.

Men and women
Employers applying different clothing or appearance rules to men and women may face sex discrimination claims. In the case Pell v Wagstaff, a male employee was not allowed to have long hair in a workplace where women could. In Jarman v The Link Stores, a male worker was disciplined for wearing an earring. In both cases, the court found sex discrimination had occurred and were unconvinced by the employers arguing that they were applying conventional standards of dress and appearance.

However, in the case of Schmidt v Austicks Bookshops, where female employees were not allowed to wear trousers, a female employee refused to comply and was dismissed. The EAT held she had not been discriminated against because the company had also imposed different but equivalent restrictions on male staff members. In Hutcheson v Graham and Morton a female manager was required to wear the same nylon overalls as the rest of her female team, while male managers were allowed to wear suits. The court held this amounted to detrimental treatment that disadvantaged women, as the uniform pointed towards a lower status than male employees of an equivalent rank.

The cases suggest employers can treat men and women differently provided they don’t treat one or other of the sexes less favourably. Much rests on an employer’s explanation for the distinction. They have to prove one gender is not being treated less favourably, so a dress code must have equivalent standards for the other sex.

In the case of SG v St Gregory’s Catholic Science College, a school’s policy of banning the cornrow hairstyle was held to be indirect race discrimination. A pupil of Afro Caribbean ethnicity had cornrows as part of his cultural tradition. The school argued its blanket banning policy was justified because cornrows were a strong indicator of gang membership. The court held the school should have made an exception to its legitimate aim of suppressing gang culture because of a genuine cultural practice.

Chris Cook is a partner and joint head of the employment team at SA Law

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