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:

  • 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.

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?

  • 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.

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.

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