Employment briefing: discrimination issues surrounding dress codes continue to cause difficulties, and further rulings on the subject are expected from the CJEU in the coming months

It can be difficult for employers to achieve the correct balance in their staff dress code policies. Many employers have them, but often find it difficult to tread the line between projecting a professional image, or ensuring appropriate health and safety levels, and discriminating unlawfully.

Towards the end of 2016, London’s prestigious Dorchester Hotel attracted negative headlines over its employees’ dress code. Reports suggested that female staff were issued with a list of “grooming rules”, including no oily skin, no hair on legs (even if wearing tights), full makeup and manicured nails. As you might expect, the hotel management was widely criticised, not least by the chief executive of the Fawcett Society, Sam Smethers, who called the list “completely unacceptable”, urging companies to “concentrate on what enables people to do a good job and what drives productivity”. From what has been published, the rules certainly appear to be much more onerous for females than males, and likely to amount to unlawful direct discrimination on the grounds of sex.

On 25 January 2017, the House of Commons Petitions Committee and Women & Equalities Committee issued their First Joint Report of Session 2016-17, High heels and workplace dress codes. It was prompted by a petition signed by more than 150,000 people following the controversial sending home of an agency worker at the top accountancy firm PwC, for not wearing high heels. The report finds that discriminatory dress codes are widespread and the existing law not fully effective in protecting employees from discrimination at work. It also found that the approach by the Government, whose position is that it expects employers to inform themselves about their legal obligations and comply with the law, is not working.

Interestingly, the last time dress codes were discussed in Parliament was when Theresa May, then Minister for Women and Equalities, stated that she believed “traditional gender-based workplace dress codes… encourage a sense of professionalism in the workplace”.

As well as the legal framework, the report considers health, wellbeing and performance aspects of dress codes. In particular, it outlines the College of Podiatry’s views that there is strong clinical evidence of the disabling effects of wearing high heels, which worsens with age. In conclusion, a review of the law is called for.

Matters of religion

Dress codes can, of course, also discriminate on religious grounds, such as a policy having the effect of preventing religious garments being worn. Two hugely significant decisions are expected from the CJEU in the coming months. The court, in what seems to be the norm when it comes to discrimination issues, has two different Advocate General opinions with which to grapple. These cases concern difficult questions about bans on headscarves (or other coverings for women) at work on religious grounds.

UK-appointed Advocate General Sharpston, considering the case of Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA (Case C-188/15), looks at the relationship between the headscarf and direct discrimination and has opined that as manifestation of a religious belief was an intrinsic part of that belief, the ban on such manifestation was indirect discrimination. On the question of justification, her view was that the interests of the employer’s business would constitute a legitimate aim, only if proportionate.

In an earlier case, Advocate General Kokott’s view, in focusing on the Islamic headscarf as an object, was that the prohibition did not constitute direct discrimination due to the rules of that particular company, but might constitute indirect discrimination which could be justified based on the size and conspicuousness of the religious symbol, the nature of the employer’s activity and the national identity of the member state concerned.

Despite our “member state” position hanging in the balance, these decisions will remain of interest in the meantime.

Limited discretion allowed

Employers do have some discretion in this area. A dress code which requires staff to dress smartly might allow for differences between male and female staff, such as men being required to wear a tie. However, this discretion has limits and must be exercised in an evenhanded way, without infringing on the protected characteristics in the Equality Act 2010. In addition, indirect discrimination – where a policy is applied to all staff but disadvantages a particular group – may be objectively justifiable: preventing a nurse from wearing a crucifix at work has been justified on health and safety grounds, for example.

In order to avoid discrimination claims, and the ensuing financial and reputational damage, employers need to think carefully about what they require from a dress code. Those requirements should not go beyond what is reasonable to fulfil objectives, should have an element of flexibility in application, but should be enforced consistently. 

The Author
Amanda Jones, partner, Maclay Murray & Spens LLP
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