Q According to recent media reports, UK airline BMI has banned its flight crews from wearing crucifixes or St Christopher medals on flights to Saudi Arabia to avoid offending Muslims. Is it allowed to do that?
A Formal rules on dress and appearance are becoming increasingly popular, but these can land employers with claims if they do not balance the need for a corporate image against the rights of employees to choose what they wish to wear.
Q Is there any case law in relation to dress codes?
A Cases – such as Fuller v Mastercare Service & Distribution, Smith v Safeway and Greenslade v Haveringham Gravels Ltd – have allowed employers to insist on short hair for men, but it is best to minimise the impact of dress and appearance rules on the employees’ rights to freely express themselves.
An interesting case in relation to sex discrimination and dress codes is that of Shane and McKay, two female security guards who were preparing to bring a claim for sex discrimination until their employer, Eurostar, changed its dress code policy to allow female security guards to wear skirts or trousers when on duty.
Q Have recent employment law changes made the implementation of dress codes more difficult for employers?
A Discrimination law, in particular on the grounds of sex and race, has been used by employees to challenge dress codes for some time now. For example, in Fuller v Mastercare, Mr Fuller was dismissed for refusing to cut his ponytail. Fuller argued that he had been discriminated against because his employer’s policy on grooming was more restrictive towards men than women.
His claim was rejected by the tribunal which ruled that the employer’s dress code did not have a less favourable impact on men. However, employers need to be aware of the Employment Equality (Religion or Belief) Regulations 2003, which came into force on 2 December 2003, giving employees the right not to be discriminated against on grounds of their religion or belief. We are now starting to see this legislation being used by employees to bring claims against dress codes. ‘Religion or belief’ is any religion, religious belief or similar philosophical belief.
There is no list of protected religions or beliefs, but, importantly, ‘manifestations’ of religion or belief are also protected.
Q What are the chances of religious discrimination claims being brought because of employer dress codes?
A By way of an example, it is possible that the BMI flight crew could try and use the equality regulations to argue that they have suffered discrimination which has resulted in both hurt feelings and, if the reports in the media are correct, a significant financial loss. The airline would need to show either that it has a ‘genuine occupational requirement’ that flight crew have to comply with, or that the policy was a proportionate means of achieving a legitimate aim. The defence would depend on whether the claim was for direct or indirect discrimination.
Q What should we consider when introducing dress codes?
A Employers should not be afraid to have dress codes. Where staff come into contact with the public, or need to wear special clothing for health and safety reasons, a code is easy to justify.
If employees breach acceptable standards of dress and appearance, employers are in a much better position to take action if there is a clear dress code or uniform policy in place which specifies the standards expected and the consequences of breaching those regulations.
When drafting policies, it is important to consider the various claims that can be brought – in particular, discrimination – and ensure you take an even-handed approach.
Consult with employees and their representatives when introducing or changing dress codes. This will reduce the risk of any breach of contract and discrimination claims.
By Jonathan Maude, head of employment, Manches