Dressing for your diary – dress codes and discrimination

Working from home has allowed much greater freedom for individuals to dress as they choose. However, with increasing numbers of people returning to the workplace, revisiting a dress code may be advisable, especially considering two recent cases in the European Court of Justice*. Both cases addressed the potential discriminatory aspects of imposing dress codes within the workplace.

The European Court of Justice’s decision on religious dress
Here we have two cases concerning workplaces in Germany, both involve a ban on wearing signs of religious/political/philosophical dress. In the first case, a carer for children with special needs was suspended for wearing an Islamic headscarf, following warnings that she had breached the policy of neutrality. Under this policy, employees were required not to wear any signs of political/philosophical/religious belief which would be visible to parents (the carer worked in a nursery) or third parties. In the second, the employee was a sales assistant, and she was sent home when she refused to remove her headscarf. The employer’s policy stated that employees were prohibited from wearing any ‘large-scale’ signs of a belief. This policy was, the employer argued, justified by a desire to ensure neutrality and prevent conflict between employees. In both cases, the ECJ was asked to consider whether there was direct discrimination and/or indirect discrimination and whether the latter was justified.

In the case of the nursery worker, the ECJ noted that the practice of banning any signs of belief was not direct discrimination as everyone was treated the same and all employees could potentially have a belief. Yes, it would inconvenience only some but the rule itself applied to all equally. However, the ECJ concluded that there was indirect discrimination, as this rule of neutrality would in practice, almost exclusively affect female workers. It could only be justified if there was a genuine proven need for the policy, i.e. would the freedom to conduct business be undermined in the absence of such policy? and if the policy was applied consistently and systematically, and limited to what was necessary in regards to the scale and severity of the adverse impact on those affected.

In the second case, the ECJ ruled that this ban on large scale items could be direct discrimination. It had a greater effect on people of certain beliefs and therefore did not apply to all employees, as the ban in the nursery did. In addition, the ECJ held it was likely to be indirect discrimination that could not be objectively justified. If neutrality was the reason for the ban, then this could only be achieved with an outright ban of religious dress and not a partial one.

These decisions make sense and do provide some useful points and questions to address when considering dress codes, especially when they relate to guidance or outright bans on items relating to employees’ believes/faith. One important issue to note, however, is the difference between the secular culture of many continental European countries and the UK. These countries have a strong principle of secularisation which creates the backdrop for a policy of neutrality. In the absence of that secular culture in the UK, any attempt to justify a religious dress ban is likely to be unsuccessful.  

Learning points

• Check any dress code either existing or to be introduced – are there any hidden discriminatory issues that have been missed previously?
  For example, “your hair should be tied back and neat when attending the workplace”. This phrase tends to allude to non-afro-textured hair and can result in discrimination when employees with afro-textured hair are spoken to about their ‘unruly or big hair’. You should consider such requirements; are they necessary? Are they too subjective? Are they discriminatory? Is there a different way of stating that employees should appear smart in the workplace?
  
• Can you justify discriminatory aspects of a dress code?
  Ensure that you have sufficient evidence for any justification. If there is a health and safety argument, have relevant statistics relating to risk, and up to date risk assessments. If you are relying on any argument relating to corporate image, can the corporate image of the organisation be conveyed without discrimination? Could a uniform be designed to be less gender-specific? As noted above, when it comes to religious discrimination, it is unlikely that a policy of neutrality would be sufficient justification given the absence of a secular culture in the UK.
  
• Is a dress code consistently and systematically followed?
  If you have a strong justification as to why jewellery is not permitted, then this justification will be severely weakened if the policy is not implemented consistently.
  
• Is your dress code clearly communicated to your workforce with explanations for any restrictions?
  This is especially key as employees may be returning to your organisation and either you want to remind them of their obligations when working outside their home, or you have introduced additional or alternative obligations. You may want to allow a ‘grace period’ for employees to readjust to returning to work if they need to purchase additional work clothes. If that is the case, be mindful that the cost of any clothing required for work purposes will be taken into account when calculating national minimum wage (NMW) entitlement.
  
• Is your dress code mindful of social mobility issues?
  There is an increasing amount of discussion about inequalities within the workplace, not just concerning the protected characteristics in the Equality Act 2010, but based on socio-economic factors. Could your dress codes whilst not discriminatory create a barrier for employees who do not own suits or have no experience or understanding of ‘dress down office wear’? If you are interested in this topic and would like more information, please do register for our social mobility toolkit. 

For more information

If you would like any further advice on this issue please contact Hannah Bollard.

*Post-Brexit, ECJ cases do not bind UK courts and tribunals, nevertheless, EU law must continue to interpret EU legislation in line with previous case law which includes those decided at the ECJ (with the exception of the Supreme Court and Court of Appeal). We would continue to advise that ECJ cases when based on EU legislation enshrined in UK law should be considered and weight given to any decision.   

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