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Dress codes – what employers can and can’t do

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After the cases included in Eweida and others v British Airways, which went all the way to the European Courts last year, one thing that has been on the forefront of many employers’ minds recently has been dress codes and what you can and can’t do.

Due to this Acas have recently issued new guidance on dress codes.  This guidance sets out things for employers to consider rather than providing answers as such.

This area can be a bit of a minefield and so we wanted to set out our own guidance to clarify issues for employers.

What did Eweida say?

In this case there were 4 Claimants:

  • Mrs Eweida who sought to wear a visible plain silver crucifix cross whilst she worked on the check-in desk.
  • Ms Chaplain who also sought to wear a crucifix cross necklace whilst employed as a geriatric nurse.
  • Ms Ladele was a registrar who refused to perform civil ceremonies for same sex couples.
  • Mr McFarlane who was a counsellor and refused to offer counselling services to same sex couples.

All 4 Claimants’ actions were due to their religious beliefs.  All 4 Claimants’ actions were also in breach of their employers’ various policies, and so their employers refused to allow them to do what they wanted to do (as above).  Consequently all 4 claimed that they had been subjected to indirect religious discrimination by their employers.  As you will know indirect discrimination is capable of being objectively justified as long as there is a legitimate business aim and the discriminatory treatment is a proportionate means of achieving that aim.

The only Claimant that was successful was Mrs Eweida.  In simple terms the European Court found that there is a careful balance to be had between protecting employees’ rights not to be subject to indirect discrimination based on their religion and also other matters such as health and safety (in the case of Ms Chaplain) and other peoples’ right not to be discriminated against (in the case of Ms Ladele and Mr McFarlane).

Basically, what this case highlighted was that employers may well be expected to accommodate reasonable requests in terms of uniform……and this is where Acas have stepped in.

What have Acas said?

As a response to this, Acas recently issued new guidance on dress code and appearance in the workplace.  This guidance does not provide all of the answers but we would urge employers to read through it alongside your uniform or dress code policy to see whether you are compliant or whether changes to the policy or application of the policy may be required. The guidance is relatively short and certainly worth a read.

Key themes to the guidance are as follows:

  • Employers must be careful of discriminatory treatment in their policy.  For example for the protected characteristics of religion or belief, sex, disability or gender reassignment.
  • There is an element of discretion for employers depending on their business.
  • The reasoning behind the dress code is of upmost importance and employers are urged to consider “why” they are requiring certain dress when they are drafting the policy.
  • Issues relating to religious dress should be given especially careful consideration.  Any restriction should be connected to a real business or safety requirement.  Employers are advised to think about the image they want to convey and about how they can work with employees to allow them to manifest their faith in a way that does not conflict with this image, or health and safety requirements, rather than provide a very strict and limiting dress code.

Practical tips

If you have a dress code or policy and/or are considering implementing one then you must do so with careful consideration of all of the issues.  This will be a balancing exercise between various conflicting rights.  Our suggestion would be to consider taking the following steps:

Read and consider the Acas Guidance;

  • Consider your reasoning for requiring a certain dress code. We would suggest writing down your considerations;
  • Try to think of a number of possible options to achieve what you want to.  Evidence these and consider the pros and cons of each;
  • Once you have been through the above steps you should be in a position to be able to select the most appropriate dress code/policy; and then
  • Seek advice on the drafting of this policy to ensure it is legally compliant.  This is something that the FBe team can provide assistance with.

Contact the team

If you require any advice on dress codes or any other aspect of employment law please do not hesitate to contact the FBe team for a confidential chat.

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