Cabin crew, dress codes and discrimination
Last week's report on the BBC news website that, after a two-year dispute, female British Airways cabin crew had won the right to wear trousers, reversing part of BA’s dress code, justifies a review of the legal risks for employers who operate dress codes in the workplace.
Of course, there is nothing intrinsically wrong about dress codes. Many employers justifiably require a certain standard of dress in the workplace. But employers must be careful that any dress code does not discriminate against an individual worker.
Having different rules about clothing or appearance for men and women need not result in claims of sex discrimination. Employers can treat men and women differently provided they do not treat them less favourably.
As long ago as 1996, the Court of Appeal confirmed that rules which have different content for men and women are not discriminatory if they impose a common requirement for smartness and conventional attire (Smith v Safeway plc).
So, in that case, Safeway could require a male employee to have short hair whereas female employees were allowed to keep their hair long if it was tied back.
Similarly, the Department of Work and Pensions was entitled to require male but not female employees to wear a collar and tie (DWP v Thompson )
The imposition of dress codes can indirectly discriminate against some racial groups.
The High Court ruled that a school's uniform policy prohibiting boys from wearing their hair in cornrows (braids) was indirectly discriminatory on the ground of ethnic origin. The court accepted that there are those of African-Caribbean ethnicity who, for reasons based on their culture and ethnicity, prefer to wear their hair in cornrows. This group (including the claimant) would be particularly disadvantaged by the school's policy, which could not be justified (G v St Gregory's Catholic Science College .)
Religion or belief discrimination
Imposing the same dress rule on everyone may indirectly discriminate against workers with a particular religion or belief.
There have been a number of cases illustrating the tension created by dress codes for Muslim women wishing to wear traditional clothing
In Begum v Pedagogy Aurus UK, the tribunal ruled that an employer had not discriminated against an employee when it told her that she could not wear a Jilba (a cloak, neck to ankle in length) as it presented a tripping risk. Dismissing her claim for religious discrimination, the tribunal decided that a requirement that no garment should be worn that caused a risk of tripping did not cause an unfair disadvantage to Muslim women and, in any case, was justified on health and safety grounds.
Azmi v Kirklees Metropolitan Council 2006 involved a teaching assistant who was suspended for refusing to remove her veil while teaching, although she was permitted to wear it at all other times.
Ms Azmi’s claim of indirect religious discrimination was dismissed. The tribunal ruled that the school’s instruction was justified as there was objective evidence that when she was wearing the veil children did not engage with her as well as when she was unveiled. The requirement not to wear the veil was proportionate as the school allowed her to wear it when she was not teaching.
However, a Muslim job applicant who complained that she was refused a job in a hair salon because she wore a headscarf (‘the hijab’) won her claim of indirect discrimination, as the salon had failed to demonstrate how the requirement for hairdressers to display their hair was a proportionate means of achieving a legitimate aim of business promotion (Noah v Sara Desrosiers (2007) ET)
Employers need not be afraid of dress codes. There can be legitimate health and safety, business and practical reasons for dress codes. However, employers should ensure that they have such a reason for imposing a dress code. Employers should also adopt a sensitive approach to the enforcement of their dress code. If an individual feels aggrieved that their employer is trying to compromise their religious beliefs by enforcing a dress code, a heavy handed approach is likely to exacerbate this.
This information does not, and is not intended to, amount to legal advice and is not intended to be relied upon. You are strongly advised to obtain specific personal advice from a lawyer about your case or matter and not to rely on the information or comments in this article.