Should we have a “bee in our bonnet” about dress codes in the workplace?

This should in theory be a fairly straightforward concept, however, the highly publicised case of the female agency worker who was sent home without pay because she refused to wear high heels tells us that companies can and do often get it wrong.

Under the Equality Act 2010, having an overly prescriptive dress code can result in claims of discrimination related to race, religion, sex or disability (amongst others). On the other hand, not having a dress code policy that at least sets out appropriate standards of dress and what staff cannot wear can make it difficult for employers to raise any concerns particularly during the hotter summer weather.

The most common areas of conflict that we tend to see when advising clients arise in relation to sex and religion and this is reflected in the conflicting case law.

Are there any recent cases that are “on the button”?

The European Court of Justice recently ruled on two cases where employees alleged religious discrimination in relation to dress codes:

  • In Achbita v G4S Secure Solutions, Ms Achbita was dismissed for wanting to wear a headscarf whilst doing reception work, as G4S had a policy which prevents the wearing of any signs of political, philosophical or religious beliefs by any customer-facing staff in their workplace. This was held not to be discrimination.
  • In Bougnaoui v Micropole, Ms Bougnaoui wore a headscarf and was sent to work at the premises of a client. The client objected saying that it had upset a number of its employees. Micropole as a result, asked Ms Bougnaoui to observe a policy of neutrality when dealing with clients. She refused and was dismissed. This was held to be direct discrimination.

The above decisions appear to suggest that a specific policy of neutrality can be applied, provided it is the employer’s policy and not as a result of a client’s wishes. However, they should be treated with caution in practice because both cases were instigated by employees based in Belgium and France, both of which have a history of secular views.

Is there a belt and braces approach to avoid discrimination claims?

Here are our top tips.

  • All employees should be treated equally, dress codes should not be more onerous for one gender compared with the other.
  • Dress rules should be kept to a minimum to reduce the risk of discrimination.
  • Health and safety or the need for facial communication may justify some restriction. However, employers must ensure any restrictions have a legitimate aim and the restrictions are necessary to fulfil that aim.
  • If employers wish to adopt a requirement for a neutral appearance, they need to have good reasons and it should be applied to as few customer-facing roles as possible.
  • Prior to dismissing, employers should look for alternative non customer-facing positions for an employee affected by the dress rule.

What happens if an employer becomes a fashion victim?

If an employee is dismissed as a result of refusing to comply with a dress code policy, it could result in claims of discrimination which would entitle an employee to an injury to feelings award (of up to £40,811 including inflation) and an amount in respect of future loss of earnings which is uncapped. The employee may also have a claim for unfair dismissal if they have at least 2 years’ continuous service.

Note that even if an employee is not dismissed, they could still bring a discrimination claim which would entitle them to seek an award in relation to injury to feelings. The damage to an employer’s reputation as a result of a claim may also be significant.

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