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How far can an employer control what their employees wear to work?

02 August 2016

Whilst there is no legislation that directly governs the rules that an employer can impose on its employees, dress codes are often challenged under discrimination legislation.

Erin Sandilands recently hit the news headlines when she was awarded £3,500 for discrimination and harassment on the grounds of her sex because her employer, who ran a bistro, told her to wear her hair down, dress in a skirt and put on a full face of make-up so that she would be more feminine and “easy on the eye” for customers.

Discrimination on the grounds of religion or belief is also a common ground of complaint, particularly about restrictions on jewellery and headscarves. Two recent cases on the discriminatory effect of banning the wearing of religious symbols at work have been referred to the European Court of Justice with different results.

In the case of Achbita v G4S Secure Solutions NV, Advocate General Kokott concluded that a blanket ban which prevent employees from wearing any visible sign of their religious beliefs while on duty was not direct discrimination on grounds of religion or belief. The company’s policy had resulted in the dismissal of an employee who had worn an Islamic headscarf to work. AG Kokott’s reason was that the ban applied to all religious beliefs without distinction; that is, there was no discrimination between religions. For example, a Jewish employee would not be permitted to wear a kippah; just as a Sikh employee would not be permitted to wear a turban; and just as a Christian employee would not be permitted to wear a crucifix. AG Kokott also concluded that, even if it was direct discrimination, the blanket ban would be permitted as a genuine occupational requirement.

Conversely, in the case of Bougnaoui v Micropole SA, Advocate General Sharpston concluded that an employer’s refusal to allow on employee to wear an Islamic headscarf at work, because she was customer-facing, was direct discrimination on the grounds of religion or belief. AG Sharpston noted that the right to manifest one’s religion or belief was an intrinsic part of the prohibition on direct discrimination, and that the employer’s dress code treated employees of Muslim faith less favourably because of their religion than a comparable employee would have been treated. AG Sharpston did not accept that the discrimination was a genuine occupational requirement.

Although the opinion of the Advocate General is often adopted by the European Court of Justice, it is not binding. One would expect the ECJ to favour the opinion of AG Sharpston in the Bourgnaoui case over that of AG Kokott in Achbita. Even if a blanket ban on religious symbols, like the dress code imposed by G4S, is not directly discriminatory, it is likely to be indirectly discriminatory.

Employers who wish to impose a dress code should have regard to the reasons behind the dress code and the desired outcome. We recommend that employers assess their workforce and anticipate possible objections before a policy is imposed. A dress code should only go as far as it is appropriate and necessary to achieve a legitimate aim, for example to protect the health and safety of employees.