Most employers will implement a dress code at work. Whether the dress code is lawful or not is an important distinction employers need to consider. It is widely recognised that in certain sectors, uniform/dress codes might be necessary, but what can employees be asked to wear or asked to remove before it becomes an action of unlawful discrimination by the employer?
Every business owner knows the importance of keeping your employees happy, but if the way they dress or behave is effecting your business or disgruntling your clients, what can you do about it?
High heels and gender discrimination
A woman who was sent home for refusing to wear high heels made national news last month, sparking a heated debate on what employers can legally force their employees to wear. Nicola Thorp, a temporary worker for the Accountancy firm, Price Waterhouse Coopers (PwC), was sent home on her first day of work after wearing flat shoes. Ms Thorp was told when she arrived at PwC that she needed to wear 2-4inch heals to work, when Ms Thorp refused she was sent home without pay. The question is can an employer legally require you as a women to wear high heels?
So can an employer legally force women to wear high heels? It is legally recognised that employers can implement dress codes and can even impose different dress codes for different genders. Furthermore, companies tend to have a large discretion in controlling their company's image, including the appearance of staff, especially those who have contact with customers. But can an employee be dismissed if they refuse to follow a part of the dress code? The answer is yes, an employer can dismiss an employee for not adhering to 'reasonable' dress code at work.
If the employer can prove that requiring their female employees to dress in a certain way is solely to do with smartness of appearance, then it could be deemed as a reasonable requirement. If however the employer's reasoning is to make their female employees 'appear sexier', it could amount to sex discrimination.
So what about other types of dress?
The case of Achbita and Another v G4S Secure Solutions from Belgium has also made headlines. The Advocate General published an Opinion on the Belgium companies' dress code, concluding that banning employees from wearing any visible religious, political or philosophical symbols in the workplace, a Muslim headscarf for example, did not amount to direct discrimination. . If the judges of the European Court of Justice (ECJ) agree with the Advocate General when they hear the case, it would mean that employers would be able to legally request employees to remove items of religious clothing, including; Muslim headscarves, Jewish Kippas, Sikh turbans or Christian crucifixes, as long as religions are all treated equally.
The EU directive that governs discrimination in the workplace provides that if a "characteristic constitutes a genuine and determining occupational requirement" that provisions can be legal as long as they are "legitimate" and "proportionate". This means that if the legitimate aim of banning headscarves in the workplace is to maintain a vision of neutrality then it can be proportionate to ask employees to remove them and subsequently terminate their employment if they do not adhere to the policy.
The issue this raises is the apparent disconnection with the European Court of Human Rights, which is not a part of the EU, which ruled in 2013 that a British Airways' worker's Article 9 right to express her religion had been unfairly restricted when she was prevented from wearing a cross at work. Therefore, reasonable neutrality policies at work will not constitute discrimination but they may constitute an infringement on a person's human rights. This makes the situation very complex – it is unclear whether it is legal or not to restrict an employee's ability to wear religious items in the workplace. The situation will hopefully be clarified by the ECJ when they hear the case of Achbita and Another v G4S Secure Solutions – which is the first case of religious discrimination under the EU Directive to reach the ECJ.
All of the above is entirely dependent on the individual situation and the reasonableness of the employer's policy in place. We would recommend you obtain expert legal advice before implementing this kind of policy to ensure it complies with the legitimate and proportionate hurdles set by the EU Directive.
Most important is the need to have an appropriate written policy in place in the first instance, for more information contact our employment team on 01603 693500.
