What not to wear

A lmost all employers have some kind of dress code -a set uniform, or business dress, business casual or dress down casual. Recently, employment tribunals have been put in the position on a number of occasions of being asked to act as the Trinny and Susannah of the workplace to tell employees exactly what they can, and can’t, wear to work.

In the past, dress code cases have been based on a claim for sex discrimination. However, in light of the recent Court of Appeal ruling in R v Headteacher and Governors of Denbigh High School, is there a possibility that new cases will be brought on religious discrimination grounds. Will tribunals take a different approach in these kinds of cases?

The first dress code case, Schmidt v Austicks Bookshops Limited, concerned whether a requirement for women to wear skirts meant they were being treated less favourably than men. The industrial tribunal found that the requirement to wear a skirt was not discriminatory. This decision was upheld in the Employment Appeal Tribunal which concluded that, while there may be different specific rules for men and women, the dress code restricted wearing certain apparel and governed appearance and this applied equally to men and women. The EAT recognised that there may be more cases to follow on this subject and concluded that the approach which they had taken in looking at the dress code as a whole was more likely to lead to a sensible result, than examining each situation point by point – or garment by garment.

Later cases appeared to follow on from the general ‘package approach’ set down in Schmidt. Accordingly, a requirement prohibiting men from having ponytails was not found to be discriminatory, nor a requirement for men to wear a shirt and tie. Similarly, a requirement for women to wear one form of uniform and men to wear another did not fall foul of discrimination law.

However, in R v Headteacher and Governors of Denbigh High School a young Muslim woman was excluded from school because she insisted on wearing the jilbab (a form of dress concealing the shape of the arms and legs), which was not part of the school uniform. The Court of Appeal held that the young woman’s freedom to manifest her religion or belief in public (a freedom derived from Article 9(1) of the European Convention on Human Rights) was being curtailed and it was for the school to justify such a limitation. The school argued that wearing a jilbab might be a risk to health and safety. This was rejected by the court, as other schools do permit students to wear the jilbab. The Court of Appeal concluded that the lower courts did not attribute the appropriate weight to the claimant’s belief and she had been unlawfully denied the right to manifest her religion.

So what does this mean for workplace dress codes? First, the European Convention on Human Rights (and its UK equivalent, the Human Rights Act 1998) only applies between individuals and public bodies. Any claim by an employee against a private employer would have to be brought under the Employment Equality (Religion and Belief) Regulations 2003, which prohibits discrimination on grounds of religion or belief. Secondly, in his judgement in the Denbigh High School case, Lord Justice Mummery specifically stated that this case could not be compared to the position of an employee, on the grounds that an employee is free to leave his employment and find different employment, whereas the young woman in question could not leave school in the same way.

It is however, possible for a person whose religion dictates a certain dress code to make a claim under the religious discrimination legislation against an employer who refuses to permit that particular dress. What is also clear is that it will be very difficult for a tribunal to apply the ‘package approach’ previously used when considering dress codes. It will be almost impossible to argue that a dress code which, for example, states that all employees wear business dress applies equally to all religious groups if it specifically prohibits the wearing of certain garments specific to one religion.

Accordingly, tribunals may now be forced to look in much greater detail at the specific contents of dress codes in a way which, thus far, they have managed to avoid.

Tony Thompson is a partner and Hannah Price a solicitor at Macfarlanes

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