We all know that in schools it is common for there to be strict rules about what pupils can and can’t wear. However, following the cases included in Eweida and others v British Airways, which went all the way to the European Courts last year, it has been dress codes for staff that have been under the spotlight.
Acas have recently issued new guidance on dress codes for employees. The Acas guidance sets out things for employers to consider when deciding what to include in their dress codes and enforcing them.
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 four employees bringing claims against their employers:
- Mrs Eweida who sought to wear a visible plain silver crucifix whilst she worked on a check-in desk for British Airways;
- Ms Chaplain who also sought to wear a crucifix necklace whilst employed as a geriatric nurse;
- Ms Ladele who was a registrar who refused to perform civil ceremonies for same-sex couples; and
- Mr McFarlane who was a counsellor and refused to offer counselling services to same-sex couples.
All four Claimants’ actions were due to their religious beliefs and were also in breach of their employers’ various policies. Consequently, all four claimed that they had been subjected to indirect religious discrimination by their employers. 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 to be successful was Mrs Eweida. In simple terms the European Court found that there was a careful balance to be had between protecting employees’ rights not to be subject to indirect discrimination based on their religion on the one hand and considerations such as health and safety (in the case of Ms Chaplain) and the rights of third parties not to be discriminated against (in the case of Ms Ladele and Mr McFarlane) on the other hand.
This case highlighted 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 the findings above, Acas recently issued new guidance on dress code and appearance in the workplace. This guidance does not provide all of the answers but schools should read through it alongside their dress code policy to see whether they are compliant or whether changes to the policy or its application may be required.
The guidance, which can be found at http://www.acas.org.uk/dresscode is relatively short and well worth a read.
Key themes to the guidance are as follows:
- Employers must be careful of discriminatory treatment in their policy.
- There is an element of discretion for employers depending on the type of organisation.
- The reasoning behind the dress code is of utmost 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 need or safety requirement. Employers should 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.
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. We would suggest taking the following steps:
- Read and consider the Acas Guidance;
- Consider your reasoning for requiring a certain dress code. We would suggest recording your considerations;
- 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 FB education team can provide assistance with.
If you require any advice on dress codes or any other aspect of employment law or HR please do not hesitate to contact the FBeducation team on 01332 226 149 for a confidential chat.