UK: Dress For Success – An Employer’s Guide To Dress Codes

Last Updated: 28 August 2012
Article by Brian Palmer

A recent UK decision and the forthcoming European Court of Human Rights hearings on dress codes underline the importance to employers of getting their dress code policies right.  Brian Palmer from theEmployment Team considers the issues, and how employers can protect themselves against costly claims.

Last week a Muslim woman who claimed she had been sacked from her job in a London luggage shop because she wore a headscarf won her claim of unfair dismissal.  While she lost her claim of direct religious discrimination, that was only on a technicality and the Tribunal indicated that she would have won had she claimed indirect discrimination.

Originally, Ms Farrah worked in both the Oxford Street and Piccadilly branches of the Global Luggage Company on alternate days each weekend. However, the day after she wore a headscarf to work one of the directors immediately moved her to the Oxford Street store and changed her rota so that she no longer worked at the Piccadilly store.  The Piccadilly store was higher class and the Oxford St store was less pleasant.

When Farrah questioned whether the move was because she had worn a headscarf, she was told that the company was "trying to maintain an image at Piccadilly" and that it was "trying to be trendy".

A couple of months later, Farrah was forced to resign after she took an extended lunch break.  The Tribunal found the company had "seized on the claimant's admitted misconduct as a pretext for dismissing her" and that the real reason for her forced resignation was that she had worn a headscarf to work.

Not surprisingly, the Tribunal upheld Farrah's unfair dismissal claim, concluding that she was either actually or constructively unfairly dismissed.

Direct or indirect discrimination – the different tests

However, the Tribunal rejected her discrimination claim because she had brought a direct, and not indirect, discrimination claim. It said that the correct comparator for a direct discrimination claim was a non-Muslim or a woman, whether Muslim or otherwise, wearing the same headscarf for non-religious reasons. There was no evidence that such a person would have been treated any differently. In the Tribunal's view, it was the headscarf and not the claimant's Muslim faith which the employer objected to.

The Tribunal concluded that, had Farrah claimed indirect discrimination, the provision, criterion or practice to be considered would have been the requirement not to wear a headscarf.  That would have been a rule with which Muslim women would have had more difficulty complying than non-Muslim women and which was most unlikely to be justified simply for not fitting the image of the company.

Can indirect discrimination ever be justified? 

Employers may take comfort that justification is possible in cases of indirect discrimination, as demonstrated in a different case where Mrs Azmi (a bilingual support worker) was instructed to remove a veil (which covered all but her eyes) when carrying out her duties.  The finding was that this was not indirectly discriminatory because the instruction was a proportionate means of achieving the legitimate aim of providing the best quality education - pupils needed to see Mrs Azmi's facial expressions.

The area is sure to receive more publicity and attention in September when the European Court of Human Rights hears the cases of Nadia Eweida, the British Airways employee who wanted to wear a cross on a chain against BA's "no jewellery" uniform policy and nurse Shirley Chaplin, who also wanted to wear a cross and chain contrary to hospital uniform and health and safety policies.  Employees aggrieved with current dress codes may also be watching the position with interest.

What this means for employers

Many employers impose dress codes, some for historic reasons.  Dress codes should be neutrally worded, flexible and minimal.

To minimise the risk of successful claims employers should consider afresh whether:

  • any part of an existing or proposed dress code is likely to conflict with religious or other genuinely held beliefs;
  • any such elements are strictly necessary (such as for genuine health and safety reasons) and, if not, whether they can be objectively justified;
  • they should  seek workplace agreement to any dress code (for example, by means of employee survey or consultation with worker representatives);
  • they should seek external expert advice from, perhaps, representatives of any particularly affected faith groups.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.

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