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Why are we still concerned about dress codes in the workplace?
This should in theory be a fairly straightforward concept, however, the recent 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 still often get it wrong.
Employers within the fashion industry often impose strict dress codes on staff under the guise of brand image. To take but one example, Abercrombie’s Look Policy (panned by the US Supreme Court in a 2015 decision), Hairstyle Guide and Closed Toe Shoe List (I kid you not!) all had to be toned down in the face of customer reaction, falling sales and lawsuits.
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).
The main difficulty for fashion brands is finding the right balance between projecting the necessary brand image and the risk of employees alleging discrimination. This is particularly the case with religious discrimination when employees wear or display signs of religious dress as part of their beliefs.
What does the recent case law say?
The European Court recently ruled on two cases where employees alleged religious discrimination:
These decisions appear to suggest that a specific policy of neutrality can be applied, provided it is the employer’s policy, consistently applied, and not as a result of a client’s wishes. Although these decisions are based on EU law and should technically override national UK law, 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 with different cultural and social norms to that of the UK.
A more balanced approach was arguably adopted by the European Court of Human Rights in the highly publicised case of Eweida v British Airways where BA’s aim of projecting a professional corporate image and promoting recognition of brand and staff was held to be legitimate. However, it did not justify prohibiting the wearing of a necklace with a cross, given that the cross was discreet and did not really detract from professional appearance.
What happens if employers get it wrong?
If an employee is dismissed as a result of refusing to comply with a dress code, it could result in claims of discrimination which could if successful entitle an employee to an injury to feelings award (of up to £40,811) and compensation for future loss of earnings (uncapped but typically 6 to 12 months’ net pay). The employee may also have a claim for unfair dismissal if they have at least 2 years’ continuous service.
Even if an employee is not dismissed, they could still bring a discrimination claim which could result in an injury to feelings award. The potential damage to an employer’s reputation and the brand image the dress code was designed to protect as a result of any claim, whether or not successful, should not be underestimated.
Take home points
How can employers ensure their dress codes are not discriminatory?
Taking care at the outset when introducing a dress code will help protect the brand from unwelcome claims and potentially adverse publicity and damage to the brand.