ACAS has recently published a guidance note concerning dress codes (which can be found here). Dress codes can be implemented at work for different reasons. For some, it may be to address health and safety issues, and for others, to promote a particular image of the organisation to clients and the outside world. Our dress is influenced by many factors such as popular culture, religion and fashion. When implementing dress codes in the workplace, employers need to consider how to balance their wish to maintain their desired image or indeed any other reason they have for seeking to control an employee’s dress, with their employees’ legal rights.
One clear issue regarding dress codes at work is the danger of religious discrimination. In their guidance, ACAS advise employers to ‘tread cautiously in this area’ and ‘allow groups or individual employees to wear articles of clothing etc that manifest their religious faith’. Although this provides for non-discrimination against people of different faiths, it is also very broad and is not clear where the line should be drawn.
One approach would be to permit articles of clothing that are mandatory to a particular religious belief. However, even what is considered ‘mandatory’ to a religious faith may be open to interpretation. It may also be influenced by whether a particular employee is more orthodox or liberal in their beliefs.
There are varying judgments in case law on this subject. For example, in the case of Eweida v British Airways plc  which went all the way to the European Court of Human Rights (ECHR), a British Airways employee was successful in her claim for religious discrimination. Ms Eweida was placed on unpaid leave for refusing to either cover up a necklace containing a Christian cross or accept a different position where she would be allowed to display it.
Ms Eweida’s claim was rejected by the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal, but the ECHR held that her human right to freedom of thought, conscience and religion had been violated, and that British Airways failed to find a balance between maintaining their corporate image and Ms Edweida’s Christian beliefs.
In the contrasting case of Azmi v Kirklees Metropolitan Borough Council , the Employment Appeal Tribunal (EAT) upheld a previous tribunal’s judgment that Mrs Azmi had not been discriminated against either directly or indirectly. Mrs Azmi was suspended from her job as a bilingual support worker at a school for refusing to remove her full-face veil when working with children in the classroom.
In terms of direct discrimination, the EAT held that the appropriate comparator would have been an individual choosing to wear a full-face veil for reasons other than for religion or belief. In that case, the comparator would have been treated in exactly the same manner if they refused to remove their full-face veil when working directly with children, and so no direct discrimination could be found.
When considering indirect discrimination, the EAT agreed with the previous tribunal that the school’s policy on prohibiting full-face veils to be worn inside the classroom did put people of Mrs Azmi’s religion or belief at a disadvantage. However, no discrimination was found because the policy was justified as a proportionate means of achieving the legitimate aim of the provision of education. Both the headmaster and a colleague noted that the children did not engage with Mrs Azmi as well when she was veiled than when she was unveiled. In addition, the school did allow Mrs Azmi to wear her veil when she was not directly working with children.
It is important to note that the above case does not give permission to employers to ban articles of clothing belonging to a religion or belief. Rather, it provides an example of where a dress code policy may be justified and encourages employers to work with their employees in this area in a way that balances manifestation of faith with the legitimate aims of the employer.
For further information on the issues raised in this article, please contact a member of the Spencer Wyatt team on 020 7925 8080 or by email at email@example.com.