The Begum case (click here for details) proved to be a victory for common sense, as the particular garment Ms Begum wanted to wear to work was a trip hazard and was not strictly required to be worn according to her religion, but deciding what is reasonable for employers to expect when it comes to telling employees what to wear/not to wear in the workplace is a challenge, and it isn’t confined to religious dress either. As employers can we ask people what to wear or not to wear? What about all those piercings & tattoos, whacky hairstyles and designer stubble?
Common sense: Safest always to start here! The common sense position with regards to (in particular) religious dress and jewellery is to permit it providing there is no objective reason for not permitting it. An objective reason could be health and safety reasons, or (in the case of face coverings) the need for interaction e.g. in a school or college.
Even outside of religious concerns, people have a right to freedom of expression and indeed this is enshrined in the Human Rights Act. So just because we, the employer, expect clean shaven white shirted tattoo-free employees, doesn’t mean that we can reasonably assert our expectations. In Catharell Vs Glyn Nuttall Ltd for example an electrician was unfairly dismissed for refusing to cut his hair. The appeal tribunal was of the view that as long as his hair length was not detrimental to his ability to perform his duties he was entitled to have his hair as long as he wanted. It was for the employer to put forwards a convincing reason for wanting him to have short hair and, as it didn’t, (the owner’s personal preference was irrelevant) the dismissal was unfair.
Does that mean we can never tell an employee what to wear or not? Of course not – we have every right to expect our staff to project an appropriately professional image, but it does mean we need to be reasonable and mindful of the requirements of the job. Some examples:
- Requiring shop staff to wear a uniform would be reasonable and proportionate as it enables the employer to present a professional image and ensures customers can identify staff. Leeway should be given though to staff who wish to observe certain religious principles – so allowing a Muslim woman to wear a headscarf would be an expected reasonable adjustment to the uniform policy.
- Requiring employees handling food to not wear jewellery that might fall into the food would be reasonable. Banning jewellery in an office environment would not be.
- Requiring a sales representative to cover up visible tattoos while conducting client visits would normally be reasonable in order for the company to project a professional image, while requiring an accountant to cover the tattoo on her foot would not be reasonable.
- Requiring a client facing employee with a particularly wild hairstyle to calm her hairstyle down would normally be reasonable (if the employer legitimately wishes to present a professional image), banning hair ringlets would not be reasonable as more Afro-Caribbean employees have this type of hair and would therefore be at a disadvantage.
- Requiring a food handling employee to wear a snood over their beard and a hair covering would be reasonable, but expecting staff to keep hair short without H&S justification would be a breach of their freedom to express themselves and would not be reasonable.
- Requiring staff not to wear badges supporting illegal activity or containing inappropriate images or language would be reasonable, but preventing them wearing discreet religious bands or jewellery would not be, particularly if the items don’t detract from the overall professional appearance required.
- Expecting client facing employees to dress professionally would be reasonable, but expecting warehouse staff who don’t come into contact with customers to present similarly would probably not be, though of course we could provide, and require them to wear, a uniform.
When it comes to what to wear and not to wear, many cases have traversed the courts and tribunals over the years. We’ll cover just a small selection below in the context of what can and cannot be reasonably expected.
Religious Jewellery. Individuals may be required to refrain from wearing jewellery if it presents a health and safety risk, for example necklaces in a care home or when operating machinery or studs and rings in a food handling environment. Nevertheless in Eweida v British Airways plc the European Court of Human Rights (the final stop on the legislative system) made clear that, if no health and safety considerations exist, individuals should be allowed to display discreet symbols of religious faith – in Mrs Eweida’s case it was a small Christian Cross she wore over her uniform. The court ruled that the cross did not compromise the professional image BA required of its staff, and also noted that BA allowed the wearing of punjabs and turbans, neither of which were standard parts of its uniform policy, but both of which allowed employees to respect their respective religions.
Other jewellery. Some employers choose to include restrictions on the wearing of jewellery as part of their dress code but these restrictions may lead to complaints of discrimination and defending these standards may be difficult without objective justification. In Jarman v The Link Stores Ltd, Jarman (a man), succeeded in his discrimination claim when he was disciplined for refusing to remove his earring. Women were allowed to wear earrings and there was no justification for preventing Jarman from doing so, so this amounted to sex discrimination. Consistency between the sexes is important then as differences between the sexes as to what jewellery may be worn in the workplace could constitute sex discrimination.
Justification for limiting jewellery (and indeed long hair that isn’t contained) often exists in the food industry though or for jobs involving working with machinery. In these instances it is normally reasonable to ban jewellery other than a plain wedding ring.
Headscarves/veils. Again unless there is a legitimate reason (e.g. health and safety) to require people not to wear head coverings then the default position is to allow it – many employers modify their uniform policy to allow religious headscarves. In Azmi Vs Kirklees Metropolitan Borough Council Azmi lost her discrimination claim having been told not to wear a full veil while teaching, the council claiming that her ability to interact with children fully was being hampered by the children not being able to see her face. The EAT agreed that the practice (of requiring teachers not to cover their faces) would have been applied equally to Muslims and non-Muslims and furthermore that even though the practice put Muslim women at a particular disadvantage, it was a justifiable practice in that it enabled more fulsome communication with children.
Turbans. Specific legislation (Employment Act 1989 Sections 11 and 12) exists to allow Sikhs to wear turbans instead of safety hats on construction sites, and to refuse to employ a Sikh because they won’t wear a safety hat would be classed as discrimination. Any damages payable for a Sikh being injured on a construction site would be limited to the injuries that would have occurred had he been wearing a safety hat. This protection does not apply outside of the construction industry – in Dhanjal Vs British Steel General Steels the tribunal ruled that Dhanjal’s dismissal for not wearing a safety hat was fair – British Steel had been advised by the local inspector of factories that his not wearing a safety hat was in breach of the Health and Safety at Work Act 1974 and that that Act did not have any religious exemptions to the rule. British Steel was under a duty both to protect its employees from injury and itself against litigation for preventable injury and had provided Dhanjal with plenty of opportunity to comply and warned him of the consequences of not doing so. Although the practice of wearing a safety hat put British Steel’s Sikhs at a disadvantage, it was justified.
Beards and long hair. Employers wishing to restrict hair length or the length of beards should do so only if the reasons for doing so are legitimate. Normally such restrictions apply where there are health and safety issues and we will deal with these first. Holdsworth v Cleveland Fire Authority 2011 – Mr Holdsworth was a firefighter who was growing his hair. The Fire Service requested he cut it as they were concerned it would interfere with the effectiveness of breathing apparatus. Female firefighters were allowed long hair providing it was secured up and out of the way. The tribunal disagreed that Mr H had been discriminated against and asserted that the rules did not have to be exactly the same for males and females, provided the rules were, in the round, even handed. In Singh v Rowntree Mackintosh Ltd S was refused a job in a confectionery factory because he would not shave off his beard. The EAT at the time held this to be a justifiable hygienic requirement as did another EAT in the similar case of Panesar v Nestle Co Ltd in 1980. These decisions are surprising however, as beard ‘snoods’ are now widely available in the food industry and perhaps if Panesar and Singh brought their cases today, a modern tribunal might find discrimination on grounds of religion, i.e. that whilst the food industry requirement to be clean shaven might be justifiable, it would put people of certain religious beliefs at a disadvantage, and if viable alternatives to shaving off the beards had not been considered, the employer would no longer be able to justify the discrimination.
Rigorous uniform standards & dress codes. If you provide a uniform you might want to look at researching with suppliers as to how they can best provide a uniform with the required, albeit simple modifications to cater for a diverse workforce. In an attempt to meet certain religious requirements – e.g. certain religions have a need for modesty – an employer might consider allowing females to have the option of wearing trousers. Where some uniforms might emphasise body shape perhaps the compromise of a looser variation might be appropriate. Both simple variations, yet effective. Many employers now include specific religious dress issues in their policies and uniforms and with a degree of flexibility this can help to eradicate future unnecessary disputes. In Malik vs British Home Stores (a race discrimination case decided before the introduction of religion or belief discrimination legislation), an employment tribunal recommended that the employer modify its uniform to allow female employees to wear trousers, rather than a skirt, under their overalls. Similarly, employers could accommodate a requirement for women who follow certain religions to cover their hair if required, by designing a uniform which includes the option of wearing a headscarf. This point was reiterated in the more recent (2008) case of Noah Vs Desrosiers, in which Noah was told during a job interview that she would have to have her hair in a style appropriate for the hair salon’s image – as Noah was a Muslim, she would not be able to wear a hijab headscarf, so she withdrew her application and filed a claim of discrimination which she then won – the tribunal commented that the salon made no attempt to evaluate less discriminatory alternatives and also concluded that Noah would be just as able to carry out her duties wearing a headscarf as not wearing one.
When it comes to dress codes there doesn’t have to be an exact mirror for men and women in order to avoid sex discrimination – the law accepts that there are differences between male and female clothing. Broadly though any dress policy should be even-handed. In the case of the Dept for Work & Pensions Vs Thompson the tribunal concluded that Thompson, a man, had suffered disadvantage because he was forced to wear a collar and tie, whereas female staff were not. In contrast in Wilson Vs RBS plc, Wilson’s claim failed when he alleged discrimination for being required to wear a suit when female staff could wear what they wanted, providing they were smartly dressed. The tribunal concluded that RBS’s dress policy required both sexes to dress smartly and the fact that it stipulated a suit for men subjected men to no particular disadvantage.
Company image generally. The law recognises an employer’s right to protect their business image and reputation. It is imperative however that a balance is struck between the employer’s business interests and the reasonable freedom of the employee. If an employer chooses to set out express terms relating to clothing and appearance, these must be necessary for, and appropriate to, the employee’s job. For example in Eales v Halfords Ltd the tribunal held that an employer had overestimated the smartness required to serve in a bicycle shop when it insisted that E wore sensible dark shoes, dark trousers of a conservative cut, collar and tie. Employers would do well to remember that to unreasonably restrict employees’ personal freedom can lead to tension in the workplace and potential liability for unfair dismissal, sex discrimination, race discrimination and breach of human rights.
Summary. There is no law that deals specifically with the subject of employers’ rules on dress and appearance, but in some instances rules on dress or appearance may constitute direct or indirect discrimination because of gender, race, religion or belief, or disability. Indirect discrimination could occur if a requirement or rule had a disproportionate adverse impact on either men or women, on people from a particular racial group or on people of a particular religion, on disabled people, and an individual suffered a disadvantage as a result. Such a requirement or rule will be unlawful unless it can be justified. To reiterate a justification argument is most likely to succeed if the reason for the requirement/rule is linked to safety, health or hygiene, to prevent offence or to ensure that employees present a professional corporate image to the public.
Employers should be willing to vary or adapt rules to accommodate employees where possible whose cultural or religious needs might prevent them from complying with them. For example, females who follow certain religions where the emphasis is on modesty might be allowed to wear looser clothes or trousers in place of a skirt. One way to avoid these problems is for a dress code to be as non-specific as possible. A widely worded policy requiring smart appearance, with non-binding examples of suitable dress, is unlikely to fall foul of specific clothing-related beliefs.
Dress codes. To avoid complaints of unlawful discrimination consider whether your dress code is really necessary. If it is then:
- Explain the reasons behind it
- Always keep in mind how a dress code would impact on a workers ability to do their job
- Consider consulting with workers when developing the code
- Provide a way for workers to appeal against a decision not to allow them to wear a particular dress or attire
- Apply it consistently
If an employee complains about the dress standards required of them or falls short of policy, do take care to:
- Try to understand the objections an employee has to meeting the stipulation – is there room for flexibility?
- Not be so quick to formally discipline. Ensure you reiterate expectations and give the employee time to rectify their compliance. Further disregard for the set standard would permit you to commence disciplinary proceedings.
- Ensure the expectation is applied fairly to both male and female employees
- Ask yourself – is there any evidence that they have been treated less favorably than a colleague?
- Ask yourself – Have they suffered because of the requirement you have set and what is the extent of this if so?
Every case turns on its own merit so please give us a call!
At the end of the day dress policies and practices must exist to pursue legitimate aims and must represent proportionate means of achieving those aims. The best dress policies generally are those arrived at in consultation with staff and then reasonably and consistently applied and reviewed from time to time. By doing so employers will build the confidence to deal with issues of religion in the workplace in a proactive manner and be best placed to avoid challenge through the courts and tribunals.
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