Partner Article

Addressing workplace dressing

Joanna Dodd, senior associate in the employment team at law firm Clarion, takes a look at the possible pitfalls for employers of being too rigorous about corporate dress codes

A new study by the British Sociological Society has found that having visible tattoos can have a negative impact on an individual’s job prospects. Managers who were interviewed suggested that they would be worried about customers and clients who might find certain tattoos offensive or distasteful. But as cool, funky or shabby chic graduates flood the employment market, employers must tread carefully before enforcing their dress code with too much rigour.

Clearly employers are aware of their corporate image, which is personified in the individuals they employ. For this autumn’s school leavers, dressing appropriately might be what makes the difference between a flying career start and endless, unsuccessful interviews. Businesses, on the other hand, will be faced with the challenge of introducing and enforcing dress codes to a fresh cohort of employees without ending up dressed for a day in court.

The requirement to wear smart business attire, a company uniform, hair net or a hard hat is most likely something graduates who have held student jobs will have encountered. Nonetheless, a thorough introduction and explanation of the dress code rules from day one is essential from both a legal and safety perspective – making sure all new employees understand your meaning of being appropriately and professionally dressed.

However, an apparently neutral dress code policy (which affects all employees equally) can amount to indirect discrimination if it puts those who share a particular protected characteristic at a disadvantage. The only exception is in situations where such a policy can be objectively justified.

One case relating to dress codes has been progressing through the UK and European court systems for a number of years. Ms Eweida worked for British Airways and wore a cross around her neck as a symbol of her Christianity. BA’s uniform policy required any religious items of jewellery to be covered up by the uniform and so Ms Eweida was asked to remove her cross or conceal it under her uniform. She refused and was sent home without pay. After a number of negative press articles, BA announced a review of its uniform policy and later amended its policy to allow the display of religious symbols.

However, Ms Eweida brought a claim of indirect discrimination on the grounds of her religion. When her claim was rejected by the UK courts, she took it to the European Court of Human Rights (ECHR).

The ECHR had to consider whether BA’s uniform policy was objectively justified i.e. whether it was a proportionate means of achieving a legitimate aim. It found that projecting a corporate image is a legitimate aim but that BA’s uniform policy was not a proportionate means of achieving that aim. In reaching this conclusion, the ECHR noted:

Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance; There was no evidence that other items of religious clothing had any negative impact on BA’s brand; and BA was able to amend its uniform policy and so the earlier prohibition was not of crucial importance.

A similar case which examined the issue of justification was the linked case of Ms Chaplin – a nurse who also wanted to wear a cross as a symbol of her faith but was not permitted to do so under her employer’s dress code.

Ms Chaplin received a very different outcome to her claim. The ECHR was unanimous in finding that there was no indirect justification. It held that the NHS Trust had a legitimate aim of protecting public health and the health and safety of nurses. Jewellery could spread infection or get caught on a piece of equipment, and so restricting the wearing of jewellery was reasonable and proportionate.

The two cases show how the courts will consider the issue of objective justification and demonstrate that a dress code which might be considered reasonable for one employer may not be for another. For employers, the key question is ‘why’ a particular restriction is necessary and if that reason is a health and safety reason (as in Ms Chaplin’s case) it is going to be much easier to justify.

If the dress code is to project a certain corporate image, employers should carry out a ‘reality check’ to decide whether their assessment the policy really stands up to scrutiny. Employers may feel that facial hair, tattoos or visible jewellery give the wrong impression to customers, but Ms Eweida’s case makes it clear that employers need to have more than just a general impression that this is the case, before placing a blanket restriction on such matters of personal appearance. In general, it is better to allow for some flexibility in any dress code and to consider any employee request to depart from the dress code on a case-by-case basis.

This was posted in Bdaily's Members' News section by Clarion .