In this article, Kathy Daniels, employment law author and lecturer, looks at recent rulings and discussions relating to workplace dress codes and advises what you can and cannot do in this area.

In recent weeks there have been two aspects of workplace dress discussed — one relating to the wearing of a hijab and the other relating to high heels. We will look at both of these in this article.

Can you ban an employee from wearing religious dress?

The Court of Justice of the European Union (ECJ) recently ruled in two cases, resulting in some rather misleading headlines in the popular press. The cases were Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions [2017] and Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers [2017].

In both these cases a Muslim woman was wearing a hijab (the veil that covers the hair only, it does not cover the face and is not a long robe) and the employer did not want her to.

The Achbita case concerned a receptionist working in Belgium. The company had a rule that no employees could wear any religious or political symbol. She said that she wanted to wear a hijab, and was told that she could not. She went ahead anyway, wore the hijab and she was dismissed. The case was referred to the Court of Justice to ask if this was direct discrimination.

The court ruled that it was not. Direct discrimination is when someone is treated less favourably due to a protected characteristic. She could not argue that she was being treated less favourably because she was a Muslim because all employees, of all religions, were treated the same way.

However, the court was not asked if this was indirect discrimination. This is when a provision, criterion or practice is applied to everyone (such as a rule that there are to be no political or religious symbols), it is more difficult for a group with a particular protected characteristic (eg a particular religion), it is to the detriment of an individual and it cannot be justified.

If this had been argued it is possible that Achbita would have won. It could be argued that not all religions require the wearing of any particular clothing or symbols, and therefore it is more difficult for Muslims to comply with the requirement.

The Bougnaoui case concerned an employee who was an engineer and wore a hijab. She had to visit clients on their sites and one objected to her wearing a hijab. The Court of Justice was asked whether the requirement of the customer that no religious symbols were worn could be an occupational requirement. (An occupational requirement is when it is necessary to insist on something that would otherwise be discriminatory, due to the nature of the job — for example, requiring a female to carry out intimate searches of female prisoners. Occupational requirements are limited, and care should be taken when relying on them.)

The Court of Justice has ruled that this is not an occupational requirement. However, they were not asked whether it could be direct or indirect discrimination. If they had been asked they are likely, as in the Achbita case, to have concluded that it was not direct discrimination. It is quite possible that they would have concluded that it was indirect discrimination.

What we need to understand from these cases are:

  • if a dress code has a requirement in it which is more difficult for a particular group to comply with, for example, those of a particular religion, it must be justifiable. For example, if the requirement has been put in place for health and safety reasons, it could be acceptable

  • if you do put in place a requirement you might need to put exceptions in place for those who cannot comply due to their religion/race; if you can be flexible, then do be flexible.

Can you insist an employee wears high heels?

The other workplace dress topic that has been in the news relates to the situation that occurred last year when Nicola Thorp turned up for a job as a receptionist. She was told that she had to wear high heels, she refused and was sent home. She then started a petition, asking the Government to introduce legislation to stop employers asking female employees to wear high heels. The petition attracted over 152,000 signatures.

This petition was recently discussed in Parliament, which is why the topic has been in the new again. The Government has decided that no new legislation will be introduced. It has been decided that the issue is already addressed by existing sex discrimination legislation, although the Government has said that new guidelines will be introduced later in the year.

Given that the Government has concluded that existing legislation covers this point, what does the law say? Sex discrimination legislation (found in the Equality Act 2010) requires the employer to treat men and women equally. It is very unlikely that men would be asked to wear high heels, and if they are not being asked to wear anything equivalent (whatever that might be) then it would be discriminatory to insist that a woman wore high heels.

What do we need to understand about sex discrimination and workplace dress codes?

  • You can certainly set standards for dress in the workplace, but there must be equivalent standards applied for men and women. For example, if you insist that men must wear a suit and tie, women should also be required to wear a business suit.

  • You should ensure that there is nothing in your uniform or workplace dress rules which could be seen to sexualise women. Asking women to dress provocatively, for example, will never be acceptable.

  • You can put a uniform in place, which promotes your brand or the image that you want your customers to have of you. If you do this, then the requirements on men and women must be equivalent.

Last reviewed 7 June 2017