Iron out the creases in your dress code
Workplace dress codes are firmly in the public eye following a series of recent highly publicised cases; from petitions surrounding an employer’s right to require female employees to wear high heels to judgments unpicking the dress code requirements of companies across Europe. Now is the time to double check your dress code, iron out any creases and ensure you’re not hung out to dry.
A couple of recent European Courts of Justice (ECJ) cases have received considerable media interest, suggesting that it may now be possible to prohibit employees wearing head scarfs whilst at work. We would urge considerable caution with any such policy.
What do these cases actually mean for you as an employer?
The ECJ has stated that a ban on wearing visible signs of political, philosophical or religious beliefs may be appropriate for the purpose of achieving the aim of neutrality in avoiding claims of discrimination on the basis that all religions and beliefs are being treated identically.
What is neutrality? Essentially a ban on all religious symbols and clothing so that everyone (regardless of their religion or belief) is treated the same. This is likely to create some tricky issues such as a ban on Sikhs wearing turbans, Christians wearing a crucifix or Jews wearing the traditional Kippah. It is hard to imagine that there will be many organisations in the UK that would consider adopting this type of Neutrality Policy given the bad publicity such an approach is likely to have in our religiously diverse society. In addition, this type of policy may also exclude a large proportion of potential talent into an organisation simply because of how they choose to dress and express their religion.
There are a number of unanswered questions around the justification of a Neutrality Policy in connection with an indirect discrimination claim. Whilst such a policy may be justified in a public facing role (perhaps!), it would be harder to justify where the role is not public facing (for instance back office functions). For that reason a policy which applies across the whole workforce may be unworkable and potentially discriminatory. It is also questionable whether a two tiered approach (for public and non public facing roles) would be truly neutral. However, either way there are considerable hurdles to overcome to avoid an indirect discrimination claim. What we also know is that the ECJ has clarified that the willingness of an employer to take account of the wishes of a customer in connection with its dress code could not be considered a genuine and determining occupational requirement.
In short, it may be possible to impose a “Neutrality Policy” in a dress code prohibiting employees from wearing visible signs of political, philosophical or religious beliefs, but you should give very serious thought to why such a policy is required and the potential consequences such a policy may have.
So what should you do?
• Consider why you might need a dress code, and any issues that could arise when trying to enforce it.
• If you have a dress code, check that it is not discriminatory. Pay special attention to any dress code requirements which may have implications relating to religion, beliefs, disability or gender and consider whether it would be reasonable to adopt that policy.
• Carefully document the reasons for adopting the dress code, particularly if the dress code does contain some potentially discriminatory requirements such as a ban on wearing visible signs of religious beliefs. If challenged on the policy you should be able to demonstrate why such a policy is in place.
• Make sure the policy has been properly communicated to your workforce and that everyone is aware of it and the consequences of any breach.
If we can assist further please do not hesitate to contact the Employment team.