Dress codes have been hitting the headlines in recent months. You will probably remember the receptionist at PWC in Central London who was controversially sent home for not wearing high heels. A debate occurred in Parliament’s Petition Committee on 6 March 2017 following a petition by said receptionist.
The idea behind the petition was to make it illegal for a company to require women to wear high heels at work on the basis that current formal work dress codes are outdated and sexist. Almost 110,000 people signed the petition in 48 hours and the petition, although now closed, has 152,420 signatures on it. The debate was recorded and can be seen at:
Dress codes are a hot topic and for those whose feet do ache after a day in high heels (if they have to wear them), the option to wear flat formal shoes at work would be very much welcomed! There is no current change to the law yet but this should certainly make employers consider carefully their dress codes and whether they are appropriate and necessary.
There have also been headlines regarding the banning of head scarves in the workplace regarding two cases which have recently been heard by the Court of Justice of the European Union. These related to the dismissal of two women who were dismissed from work for refusing to remove their hijabs. Despite belief to the contrary, the rulings in these cases do not give employers a blanket ban on banning a head scarf should they choose to do so. I have looked at one of these cases in more detail below.
Achbita & Anor –v- G4S Secure Solutions NV
In the case of Achbita & Anor –v- G4S Secure Solutions, a receptionist was dismissed after three years of working at the firm because she started to wear a head scarf at work for religious reasons and refused to remove it when requested.
What were the facts?
When Ms Achbita started working for G4S as a receptionist on 12 February 2003, there was an unwritten rule within G4S that workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace.
Three years later, Ms Achbita informed her line manager that she intended in future to wear an Islamic head scarf during working hours. The manager subsequently informed her that the wearing of the head scarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to G4S’ position of neutrality. On 12 May 2006 after a period of absence from work due to sickness, Ms Achbita stated that she was going to return to work wearing the Islamic head scarf. On 12 June 2006 Ms Achbita was dismissed on account of her continuing insistence that she wished, as a Muslim, to wear the Islamic head scarf at work. She was dismissed with notice.
What was the decision?
The ECJ held that the head scarf ban did not constitute direct discrimination. There was no evidence that Ms Achbita was treated differently compared to any other worker.
The Court considered that the ban could give rise to indirect discrimination, in which case the question of objective justification would arise. The Court indicated that a national court would need to consider the question of objective justification and if an employer had a policy about holding political, philosophical or religious neutrality in customer facing roles, this must be considered as a legitimate aim because it relates to the employer’s freedom to conduct a business.
This decision does seem to reinforce the fact that the employer has a right to conduct its business and that this could trump the employee’s right to manifest their religion. However, the case does not give employers a blanket ban on head scarves as in each case the arguments about whether such measures are appropriate and necessary are circumstantial and finely balanced. It is considered that the UK courts and tribunals would in such scenarios carefully analyse the facts regarding each case to consider whether the objective justification has been made out.
What to consider in a Dress Code Policy
If an employer has rules on appearance and dress at work then they should be incorporated into a dress code policy. The amount of detail in a dress code policy is likely to depend on the type of business and whether there are any special requirements in relation to health and safety that need to be adhered to.
When formulating dress codes, an employer should be sensitive and keep in mind the potential issues of discrimination and also whether it is permissible to have different rules for men and women.