Defusing the Dress Code

Following on from last week’s blog ‘The Dress Code Minefield’, Kate Russell, BA Barrister, MA, Managing Director of Russell HR Consulting provides a legal perspective on this workplace dilemma.  Also known as the ‘HR Headmistress’ she has written numerous articles, published six books and e-books and has been widely quoted in the press including the Financial Times, Guardian, Independent, Huffington Post and Metro. 

Direct discrimination occurs when a person is treated less favourably on the grounds of his or her protected characteristic than a person who does not have that protected characteristic either has been or would have been treated. As a result of that less favourable treatment the person has suffered some form of detriment.

Indirect discrimination occurs where an employer applies a provision, criterion or practice which puts people of a particular gender at a disadvantage, unless that practice or policy can be objectively justified. A good example is the Azmi case which concerned religious beliefs.

Aishah Azmi, a devout Muslim, was employed as a bi-lingual support worker at a school. Although she did not raise it at the interview, she later said she had to wear a full face veil in accordance with her religious beliefs. The school investigated to see if it could accommodate her request but found that the children learned better when they could see her whole face. She was instructed to remove the veil when working with children, though she could wear it at all other times. Mrs Azmi refused and was suspended. She complained of discrimination on the grounds of her religion.

On the indirect discrimination point, the Court accepted that the school had applied a practice that put people of Mrs Azmi's religion at a disadvantage. However, the practice was justified as there was objective evidence that when she was wearing the veil children did not engage with her as well as when she was unveiled. The requirement was no more than was proportionate, as the school allowed her to be veiled when not teaching. 

More recently Nadia Eweida took her employer, British Airways, to the European Court of Human Rights after she was required to stop wearing her cross visibly. The court said BA had not struck a fair balance between Ms Eweida's religious beliefs and the company's wish to project its corporate image. Ms Eweida's rights had been violated under Article 9 of the European Convention on Human Rights.

Although Ms Eweida's claim was successful, the Court's decision was based on special circumstances, including the fact that a discreet cross would not have adversely affected British Airways' public image. Interestingly, a case brought at the same time by nurse, Shirley Chaplin, was unsuccessful. The reason for the ban on her wearing a cross was for safety reasons and this was acceptable to the Court.

Key points

• Base your dress code on business reasons and explain your reasoning.  Common business-related reasons include maintaining a public image, promoting a productive work environment, or complying with health and safety standards.
• Make sure the principles of your code genuinely reflect your business need and are neither discriminatory nor arbitrary.
• If a part of the policy could be discriminatory, consider whether it can be objectively justified. Conducting a workplace assessment will help establish any justification.
• Ensure that prospective employees are made aware of the policy before they join.
• If there are concerns, explore them using your grievance procedure and make adjustments where appropriate. 
• Give examples of what is suitable and unsuitable dress. For example, sandals which enclose the foot are acceptable; flip flops and trainers are not.
•  Identify any special requirements for employees who deal with the public.
• Communicate the policy and explain what the penalties will be for breach.
• Apply the dress code policy consistently, but make reasonable accommodation when the situation requires an exception.