Clearly a quiet Summer over at Acas, to judge by the latest guidance issued this week, this time on Dress Codes.
This is a one-page summary of some of the main considerations for an employer in drawing up such a Code – essentially that you ought to have a decent business reason for any restrictions in it and that it should not be discriminatory. Avoiding direct discrimination is relatively easy – a similar level of restrictions between the sexes will be fine even if there are differences of detail, for example. If your Code is going to exclude aspects of appearance, (dress, tattoos, hair, piercings) of a religious nature, however, the onus is on you to show why – otherwise you may face indirect discrimination claims. The Code refers in particular to health and safety reasons to bar flowing clothes near machinery, loose hair near food or dangling jewellery (including but not limited to religious symbols) near anything or anyone who might catch in it. Obvious stuff, none of it new and all already amply covered in the Acas Guidance “Religion or Belief and the Workplace” issued after the “Crucifix cases” in the European Court of Justice in 2013 http://www.employmentlawworldview.com/uks-equality-human-rights-commission-issues-guidance-on-religion-in-the-workplace/.
If you were looking for detailed help on the religious dress front, moreover, this is not really the place to come. How about this for leaving employers none the wiser: “Some recent legal decisions in this area suggest that people should be allowed to demonstrate their religious faith through their dress, for instance by wearing an unobtrusive cross symbol to denote Christianity or wearing a ….skull cap as part of the Jewish faith. However, there have been other rulings based on different circumstances that may appear to conflict with this position”.
In addition, what the Guidance regrettably does not offer is any steer on what (other than health and safety) constitutes a “sound business reason” for banning certain forms of appearance or dress. There are references to employers “communicating a corporate image” and “promoting a certain image through their workers which they believe reflects the ethos of their organisations”. Both of these suggest that if you believe as employer that a certain image is beneficial to your business, you should have freer rein to require your staff to dress in a certain way or remove piercings or cover tattoos while at work. However, the Guidance also requires the business reason to be “real”, and how is an employer to prove that? Some sort of customer survey? Or just its own delusions of professionalism, quite unsupported by empirical fact but as honestly and genuinely held as can be? Does it matter, for example whether you are a leading merchant bank, a third-rate insurer or a high street tyre-fitter with aspirations to higher things? A lawyer, a doctor, a Camden Market stallholder? When are your corporate image reasons “real” for these purposes?
At present, employers face the risk that a Tribunal determining whether a particular article of their dress code is reasonable in an unfair dismissal and/or discrimination claim is necessarily doing so retrospectively, after the disciplinary action or dismissal for breach has taken place. If you find out only then that your Tribunal (for another could easily reach a different conclusion, equally unappealably) does not regard your particular business as warranting that restriction, you are already sunk. Some help on what factors would inform that decision would therefore have been much more helpful than this re-hash of old material (although on the plus side, the numerous grammatical errors in the Guidance are all new – does no one read this stuff before it goes live?).