The European Court of Justice recently determined that a company policy banning employees from wearing religious signs such as Islamic headscarves is not necessarily discriminatory. We examine the issue of company dress codes, and how equality law still requires an employer to be flexible in its approach.
Company dress codes are common in Ireland and can be adopted for various reasons, including health and safety reasons, to promote professionalism or to communicate a consistent corporate image. Dress codes may regulate clothing, piercings, tattoos, makeup, nails, hair, and more. Undoubtedly, they have the potential to affect an individual’s personal choice outside the workplace. For instance, choice regarding hair style or location of tattoos can be limited.
A company cannot have a policy which on its face directly discriminates against employees protected by discrimination grounds, which include gender, disability or religion. Confusion and conflict can arise where policies do not directly discriminate, but affect people from certain protected categories in different ways. Policies can have a variety of requirements for certain people, but they must treat people equally. Indirect discrimination arises when an apparently neutral provision places a person covered by a protected ground at a particular disadvantage. This is unlawful, unless it can be justified by a legitimate aim, and the treatment must be appropriate and necessary in the circumstances.
Increasingly, conflict arises between employers who are prescribing dress codes and the religious beliefs held by their employees. Workers with customer facing roles are seen as the ‘face’ of the company. Controlling that image and what it may represent is a key concern. Consequently, many companies adopt a policy of neutrality, which places a blanket ban on employees wearing religious or political symbols or items of clothing. In a recent joint case involving the wearing of Islamic headscarves, the European Court of Justice (the “ECJ”) found that employers can have a policy of neutrality when it comes to dress codes. The ECJ ruled that to prohibit the wearing of a headscarf was not direct discrimination, but that it could amount to indirect discrimination.
So if an employer’s company dress code was the subject of a claim, the employer would need to be able to show that notwithstanding the greater negative effect the code had on one group or employees, there was a fair reason for applying it and it was appropriate and necessary in all the circumstances. So clearly one size does not fit all – indeed, the ECJ observed that one must differentiate between employees who interact with customers and those who do not.
This case appears at odds with a previous decision of the European Court of Human Rights (“ECHR”) where a Christian member of British Airways (“BA”) cabin crew was sent home for refusing to remove a silver cross on a necklace. BA had argued that religious symbols were not part of their corporate image. The ECHR found that although BA’s aim was legitimate, the cross was discrete and would not have affected the professional image of the employee. This may leave employers in a precarious position in trying to determine what is discrete and may increase the prospect of employees being treated differently.
The issue of equal treatment in dress codes for men and women has received a lot of media attention of late. This issue became a hot topic following a case involving an agency receptionist in PwC. The employee was allegedly sent home without pay one morning in 2015 after she arrived for work wearing flat shoes and refused to go out and buy a pair of high heels. Employers are entitled to have different requirements in place for men and women, such as the requirement for men to wear a tie. What is important is that the requirements for men and women, when compared to each other, are equal in terms of prescription and conventional standards. In a case involving Dunnes Stores, the Labour Court considered that an employee who had a well-maintained goatee, but was required to be clean shaven, was unfair and discriminatory. The court noted that the goatee was neat and did not offend conventional standards, so to prescribe unconventional standards on the employee was discriminatory on account of his gender.
What does this mean for employers?
Employers can face problems when trying to promote a certain image for their company. Employees who deal with customers face-to-face can be subject to more prescriptive dress codes. However, employers will have to weigh up a number of factors including religious rights, conventional standards and equal treatment. If policies are being updated or adopted for the first time, consultation with employees should be considered. Employers should ensure that any restrictions have a legitimate aim, these restrictions are necessary to fulfil that aim, and that they seek to treat all employees equally.