Workplace dress codes are once again in the spotlight. British Airways' dress code policy came under scrutiny for requiring female cabin crew to wear skirts. Two dress code policies of employers in France and Belgium caused employers to dismiss two Muslim employees who wanted to wear a hijab (Islamic headscarf) for religious reasons.

Who wears the trousers?

Under British Airways' uniform policy, female cabin crew, employed since 2010 as part of the airlines' "mixed fleet", were required to wear a skirt unless exempt on medical or religious grounds. However, the crew's union, Unite, said that 83 per cent of its members at the airline wanted the option of wearing trousers for warmth and protection.

After a two-year dispute between British Airways and Unite, the airline has now agreed to allow all female cabin crew to wear trousers. Unite says that female crew members no longer have to shiver in the cold climates, and can be afforded the protection of trousers at destinations where there is a risk of malaria or the Zika virus.

Dismissed for wearing a hijab

On 15 March 2016, the European Court of Justice (ECJ) heard two controversial cases on Muslim women wearing hijabs at work. Both involved a third party objecting to the employees' religious dress while working on that third party's premises.

In the French case, Bougnaoui and another v. Micropole Univers, a Muslim IT engineer who wore a hijab was told by her employer that she must remove it while visiting clients, following a complaint from a client about the engineer's appearance. The engineer refused to comply with the request from her employer, on the basis of religious grounds, and her employer dismissed her as a result. The French court asked the ECJ whether the wish of the client for a visiting IT engineer not to wear a hijab could be a "genuine and determining occupational requirement" of the job.

In the Belgian case, Achbita and another v. G4S Secure Solutions NV, a Muslim receptionist who was permanently contracted out to work for a third party, told her employer that she would start wearing a hijab. The employer told her that the wearing of any visible religious symbols was contrary to its rules on neutrality. This policy, it said, also applied during any contact with clients.

The Belgian employer then moved to amend its policy so as to ban employees from wearing any visible symbols expressing their political or religious beliefs. The employee subsequently refused to go to work which, similarly to the French case above, resulted in her dismissal. The Belgian court asked the ECJ whether a rule preventing all employees from wearing any political or religious symbols could lead to direct discrimination against a Muslim's wish to wear a hijab.

Clearly, the above cases are evidence of workplace dress code policies that haven't perfected the balance between the employees' and employers' interests, opening up the possibility of discrimination claims against the employers.

An employer, when implementing a dress code policy, should consider:

  • he standards that are appropriate in relation to an employee's appearance, in order to protect the employer's image;
  • whether or not it is appropriate to adapt any rules to accommodate employees whose cultural or religious needs make it difficult for them to comply with a dress code policy; and
  • whether a dress code policy that might be indirectly discriminatory to certain employees can be legitimately justified.

Once a decision from the ECJ is handed down in the French and Belgian cases, this will give an indication as to how the UK courts may decide similar cases, subject of course to a decision on a Brexit.