You may have seen a lot in the news recently regarding what employers can and cannot tell their employees to wear in the workplace, with questions being asked about whether or not employers can make it compulsory for women to wear high heels, or ban them from wearing Muslim headscarves.

Whilst reports such as the jointly written ‘High heels and workplace dress-codes’, by the Women and Equalities Commission and the Petitions Commission, have included the recommendation that the UK Government needs to significantly increase the financial penalties to companies that are found by an Employment Tribunal to have breached the law, there have been some other notable cases of workplace dress-code discrimination over the past two years which have set some somewhat confusing precedents.

This article aims to help you understand the legislation that has been set as a result of these cases, as well as helping you understand what you as employers could and should be doing to prevent any issues from occurring within your organisation.

Religious and political clothing in the workplace

In a recent case held in the Court of Justice of the European Union (CJEU), Achbita v G4S Secure Solutions, it was decided that the banning of a religious headscarf did not constitute direct discrimination; leading to a landmark European ruling that employers are within their rights to ban political, philosophical or religious clothing or symbols in the workplace as long as they have appropriate policies in place covering all manifestation of beliefs without distinction.

The justification behind the ruling was that the company aimed to project an image of neutrality and therefore had this neutral dress-code for its workers, meaning the ban related to all religious items and was not directly targeting Muslims. The court went on to clarify that there must be a legitimate company policy in place prior to any incidents and companies cannot simply order employees to remove their headscarf or any other religious item without valid reason. Similarly, this ruling does not apply to cases where it is the customer who asks for the removal, with the court stating that if a customer asked for a Muslim employee to not wear a headscarf, that would not be a ‘genuine and determining occupational requirement’.

The outcomes of this case seem to directly contradict those of a similar case last year, in which a Ms Bougnaoui, who had worked for consulting and engineering company Micropole, was also dismissed for refusing to remove her headscarf. At the time, the ECJ court’s advisor ruled that Ms Bougnaoui had suffered discrimination because she had been ‘professionally competent’ and the dismissal was solely on the grounds of her refusing to remove her headscarf. It has since been decided by the ECJ that neither of the cases constituted discrimination.

What does this mean for companies?

Phil Pepper, employment law partner at Shakespeare Martineau said “It is likely that we may see a trend towards some leniency on dress policies in future following this ruling, but implementing dress neutrality policies is extremely difficult and in most cases not realistic in the modern workplace.” (People Management).

The most important thing to remember is that it is critical for you to have a detailed policy in place for any dress-code restrictions and rules, which must be upheld consistently throughout the company and should not directly target one religion, political view or any minority group. Anything set out in this policy must be justifiable; Beverly Sunderland, Managing Director of Crossland Employment Solicitors told HR Grapevine: ‘If employers need to have a policy of religious neutrality, because of the nature of the work they are doing and if this is imposed on all of those employees who are customer facing, whilst this may have a disproportionate effect on those wishing to wear religious headscarves, this policy can probably be objectively justified. However, if there is no such rule in place and a woman is asked to not wear a head scarf because a customer objects, then this is discrimination and cannot be justified.” (HR Grapevine).

We strongly suggest discussing any proposed dress-code changes with employees, where possible, to help them understand the rationale behind the amendments and help manage any negativity. If the policy applies to customer-facing employees only consider offering to relocate any affected employees to another area of the business that is not directly customer focused.

Su Allen HR helps employers by providing a range of HR support. This includes advice on how to handle difficult situations, providing clear written communication including contracts of employment and policies, which ensure fairness and consistency in all aspects of managing employees, and providing coaching and training where required. Contact us on 01582 883299 (or email to su@suallen.co.uk) if you’d like to hear more.