Where Dress Codes & Religious Beliefs Collide
Our guest blogger Claire Nisbet is a Senior Solicitor in the Employment and Pensions team at Maclay Murray & Spens LLP. Whilst advising employers and employees on a wide range of employment issues, Claire specialises in advising clients on contentious employment, discrimination and equal pay matters.
Claire is the Treasurer of the Scottish Discrimination Law Association, a Committee Member of Scottish Women in Business and a Board Member of Graphic Enterprise Scotland, the Trade Association for Print Employers in Scotland. Since April 2015 Claire has acted as Assistant Editor and Research Assistant on the 3rd Edition of Employment Tribunal Practice in Scotland (Simon and Taggart), the only distinctly Scottish reference work of its kind.
A seeming inoffensive dress code or policy could conflict with an employee’s or potential employee’s religious beliefs or requirements to wear a certain piece of clothing or jewellery.
For example a "no jewellery” policy (which is not in place for health and safety reasons) might offend a Sikh worker who wishes to wear a Kara bracelet as an integral part of her religion and as an employer you should consider allowing an exception to this rule in an attempt to avoid an indirect discrimination claim.
Limiting the risk of an indirect discrimination claim
To avoid indirect discrimination, employers should make sure that any dress rules can be justified as a proportionate means of achieving a legitimate aim such as health and safety considerations.
British Airways Case – still very much relevant
One of the most commonly cited cases in this area, and one which made national mainstream press was the case of Eweida v British Airways. Ms Eweida was prevented by her employer’s uniform policy from wearing a cross. This case, which was ultimately heard by the European Court of Human Rights in 2013 which found against the airline, had a massive impact on UK law concerning religion and belief in the workplace. Firstly in terms of disadvantage the Court stressed that religious freedom "is primarily a matter of individual thought and conscience". Secondly the Court held that "corporate image" is unlikely to be enough to justify an employer preventing an employee manifesting their religious belief (at least where they do so discreetly, and do not significantly impact on the rights of others). However, if an employer has genuine health and safety reasons for preventing such manifestation, its justification argument might well succeed (as happened in a case which was heard along with Eweida).
What about a requirement to dress “in appropriate business attire” - safe enough?
Only if applied consistently and in a non-discriminatory manner. It could be direct discrimination if a dress code, which is similar for both sexes, is applied more strictly to men than women. A dress code might require men to wear a suit, shirt and tie and women to ‘dress smartly’. Unless the dress code is equally enforced this could amount to direct discrimination because of sex. For example if male employees are formally warned for failing to wear a tie yet female employees do not receive warnings for wearing a cropped summer vest and open toed sandals this could fall foul of the requirements.
New legislation in this area
The Deregulation Act 2015 amends previous legislation to extend the right of Sikhs to wear a turban instead of a safety helmet in all workplaces and not just construction sites. However, there will still be limited exceptions for roles in the military or hazardous occupations, involving fire or riots.
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