Dress Codes in the Workplace

Posted in : HR Updates on 24 November 2016
Olga Pollock
Phoenix Natural Gas Ltd

The thought of telling staff what they can and cannot wear has never really sat very well with me, particularly in the wake of recent cases such as that of the Receptionist who was sent home from work for refusing to wear high heels.

This may seem like a pretty blatant example of sexual discrimination, however where do we stand with more delicate matters such as the wearing of religious attire? And is it acceptable to demand a 'neutral' environment which is surely at odds with promoting diversity and respecting differences?

High profile case law examples

If you’re considering introducing a dress code policy in work, particularly where one did not previously exist, employers should do so cautiously. Health and safety requirements and the potential for discriminating against certain groups should be carefully assessed. High profile cases such as Eweida v British Airways, highlight the need to get this balance right. Here British Airways lost their defence that the wearing of religious clothing had a detrimental impact on the British Airways brand. The court found that the cross was discreet and would not have detracted from the employee’s professional appearance much in the same way as the wearing of turbans or hijabs. On the other hand, a case involving similar circumstances, a nurse, Shirley Chaplin was also prohibited from wearing a cross but this time with the opposite outcome. The NHS Trust argued that the restriction was on health and safety grounds and so was found to be both reasonable and proportionate. In a further well-known employment case, Azmi v Kirklees Metropolitan Borough Council, Mrs Azmi, a teaching support worker lost her discrimination case when her employer refused to allow her to wear a veil in class. When the employer proved that the children did not engage as well with her, the EAT held that this indirect discrimination was objectively justified.

Fair Employment in Northern Ireland

In Northern Ireland, the landscape differs from the rest of the UK in that we are also governed under fair employment legislation. That said, employers should not forget their obligations that apply to all forms of political opinion and religious belief; not just those related to the two traditional community backgrounds. The 1989 Fair employment Code of Practice advised employers of the need to promote a harmonious working environment free from intimidation on the grounds of religious belief or political opinion. While over the years these matters may have become much less contentious, employers must still ensure that employees are protected against such intimidation.

The Equality Commission's guide to ‘Promoting a Good & Harmonious Working Environment’ warns how, 'the very restrictive nature of a “neutral” environment may give rise to other problems for employers. As one example, if an employer has a policy that is so rigid that it prohibits workers from wearing marks of religious observance of the sort that believers commonly wear (such as crosses, kippot, turbans or Muslim veils), then that may indirectly discriminate against persons of a particular religion, or who are members of particular racial groups. The risk of this will be particularly high where employees are genuinely obliged by the tenets of their religions to wear such emblems and so find themselves in a dilemma as their religious duties conflict directly with the conditions of their employment.' 

Of course, there are some emblems and symbols that have the potential to make others feel uncomfortable in the workplace given their historical significance. The Equality Commission provide a list of these, and while not definitive have been informed by case law and experience. The list includes for example Rangers and Celtic football shirts; badges linked to paramilitary or political organisations; or posters, emblems and tattoos linked to these. The Commission go on to list symbols which are not likely to disrupt a good and harmonious working environment such as marks of religious observance, insignia associated with organisations attached primarily to one religion, community or culture such as crosses, crucifixes, ashes, kippot, turbans, Muslim veils, pioneer pins, or marks of remembrance, celebration or commemoration such as poppies and shamrocks.

As always, context is important here. For example, it would not be acceptable if any of these items were being flaunted to others for not wearing them in the workplace or where there were health and safety risks associated with wearing them.

Smart or casual dress code?

On a more general note, Chris Bleakley of Sanderson Recruitment recommends that more formal work attire projects the right corporate image, particularly where staff are customer-facing. He claims that formal workwear increases productivity and helps employees have a professional mindset. He goes on to suggest, 'observe dress-down days to ‘fit in’ with colleagues, but dress up most of the time.' 
http://www.4ni.co.uk/northern-ireland-news/11287/experts-warn-on-acceptable-dress-codes-for-workplace.

And to wrap it all up …

Employers must ensure that the rationale for any dress code policy is objectively justified and reasonable. Blanket bans or 'neutral' dress codes should be avoided where possible and requests to depart from the policy taken on a case by case basis. Employers should balance their obligations to offer employees the freedom to choose their own identity against the corporate image of the organisation. Both of these then need to be weighed up against the employer’s responsibilities under anti-discrimination and health and safety legislation.

Who ever said it was going to be easy?

This article is correct at 24/11/2016
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Olga Pollock
Phoenix Natural Gas Ltd

The main content of this article was provided by Olga Pollock. Contact telephone number is 07845 147030 or email olgapollock@googlemail.com

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