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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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