Dress Codes: A Discrimination Minefield?
There has been a lot of press coverage recently regarding two high profile cases where employees have been asked to remove clothing or jewellery worn for religious reasons. This coverage has lead many to question whether it is lawful to ask employees to remove such items whilst at work. Nadia Eweida is reported to be considering taking legal action against British Airways after being suspended from work without pay for two weeks because she refused to remove a crucifix which British Airways say breaches uniform rules.
In a similar case, a Muslim woman was suspended from her job at a Church of England school for refusing to remove her veil. Aishah Amzi brought a claim against the school on the grounds of religious discrimination and harassment on religious grounds. At the hearing the school argued that pupils found it hard to understand her because of her veil, and the tribunal ruled that the rights of the children to receive the best quality education was paramount and therefore dismissed her claims.
However, employment lawyers are warning that this does not mean that employers can insist on the removal of employee's religious clothing or jewellery without risk. The tribunal dismissed the claim on the basis that the veil prevented the employee from delivering a critical element of her role: if the school had not been able to convince the tribunal of this, the case may well have been upheld.
So where does this leave employers?
Ultimately an employer must be able to justify any policy or dress code which negatively impacts on a particular religion or belief (or in fact race, nationality, gender, marital status, sexual orientation, age or disability)
It is therefore recommend that employers demonstrate a certain amount of flexibility in the application of dress code rules where possible and practical. However there are occasions when it is critical that a dress code is adhered to. For example, an office based employer may struggle to justify a dress code that requires the removal of a veil, but arm bangles may pose a legitimate health and safety risk within a food production or manufacturing environment.
If an employer needs to enforce a dress code they should consider the following two important points:
1. Consider the rationale for the dress code and the reasons behind the employee's desire to wear the item. Being able to explain the reason for the rules and what aim they achieve may help prevent employees from making a claim as well as minimise the risk of a claim being successful.
2. If an employee objects and raises a complaint, it is important that you follow the statutory grievance procedures as a minimum. Failure to follow such procedures could result in any compensation awarded being increased by between 10% and 50%, which could have a serious impact, particularly in discrimination cases where compensation payments are uncapped!
If you face a dress code dilemma and would like advice or for more information on the statutory grievance procedure, please contact Harriet on 01404 42359 or email harriet@hradvantage.co.uk.
November 2006
