ACAS has recently published guidance for employers based in Great Britain on dress codes. This Dechert OnPoint outlines the key issues raised by the ACAS Guidance that employers should bear in mind when drafting or updating a dress code or before taking action against a potential or current employee in respect of their dress.
Introduction
Despite trends over recent years, at least in certain industries, towards less formal workwear, there are good reasons why an employer may decide to operate a dress code. Staff may be asked to wear a uniform for health and safety reasons or to ensure that they are easily identifiable to customers. In an office environment, businesses may want to project a polished image to clients. However, employers should bear in mind potential issues of discrimination which can arise, such as in respect of items worn by an employee as a manifestation of their religion, and also that, while it is permissible to have different rules for men and women, the rules should not be more stringent for one group than another.
ACAS Guidance - key points
The flexibility or otherwise of a dress code is often dependent upon the nature of an employer's business, the extent of any health and safety risks which the relevant operation faces, the level of contact with customers or clients and any requirement to wear a uniform. Whatever the level of detail in a dress code policy, the ACAS Guidance emphasises the following points:
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Employers must avoid unlawful discrimination in any dress code policy.
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Employers may have health and safety reasons for having certain standards.
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Dress codes must apply to both men and women equally, although they may have different requirements.
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Reasonable adjustments must be made for disabled people when dress codes are in place.
The ACAS Guidance reinforces the value to an employer of considering the rationale for any dress code when drafting or updating its policies and that any such rationale should relate to the job and be reasonable in nature.
Religious dress
The ACAS Guidance notes that some employers may wish to deal with religious dress within their dress codes/policies. However, employers are advised to tread cautiously in this area as they should where possible allow groups or individual employees to wear articles of clothing or other items that “manifest” their religious faith. Employers will need to justify the reasons for prohibiting such items and any restriction should be connected to a real business or safety requirement.
The risk of discrimination claims in this area was highlighted last year when the European Court of Human Rights (ECHR) gave its judgment on two long running employment disputes which had been jointly referred to it in order to consider whether English law had failed to protect the individuals’ right to manifest their religion by wearing crucifixes at work (Eweida and Others v United Kingdom).
In respect of the first applicant, the ECHR ruled that Ms Eweida had been indirectly discriminated against by British Airways (BA) when it had taken steps to enforce its dress code by suspending Ms Eweida without pay when she refused to remove the visible crucifix around her neck. Whilst BA’s aim of projecting a corporate image was held to be undoubtedly legitimate, the ECHR held that BA and the UK courts had accorded it too much weight: Ms Eweida's crucifix was discreet and did not detract from her professional appearance. Furthermore, there was no evidence that the wearing of other items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on BA’s brand or image.
In contrast, in respect of the second applicant, the ECHR held that Ms Chaplin had not been unlawfully discriminated against by Royal Devon & Exeter NHS Foundation Trust when she was moved to a non-nursing position after refusing to remove her necklace on which she wore her crucifix. In the ECHR’s view, the aim of protecting the health and safety of the hospital ward was legitimate and the employer’s action a proportionate means of achieving that legitimate aim.
Difficulties may arise where there is dispute, as there was in the Eweida case, as to whether the item is a “manifestation” of a religious belief or something which is merely inspired or motivated by a sincere religious commitment. However, as a result of the ECHR’s conclusion that to count as a “manifestation” (within the meaning of Article 9 of the European Convention on Human Rights), the act in question must be only “intimately linked” to the religion or belief rather than being mandated by the religion or belief, employers will need to be more sensitive to expressions of religious beliefs which are not strictly speaking requirements of the religion or even widely practiced.
Health and safety
The ACAS Guidance notes that dress codes can often be used by employers to ensure workers are safe and dressed appropriately. For example, workers may be required to tie their hair back or cover it for hygiene reasons if working in a kitchen.
As can be seen from the Eweida decision, the legitimate aim of protecting health and safety is awarded significant weight when assessing whether the dress code is a proportionate means of achieving that aim. In its decision in respect of the second applicant, the ECHR went on explicitly to recognise that health and safety is “inherently of a greater magnitude” as compared to the legitimate aim under consideration in respect of the first applicant (i.e. that of corporate image). Furthermore, the courts are more likely to defer to the expertise of the employer when it comes to assessing the nature and extent of the health and safety risks posed by non-compliance with any dress code.
However, an employer will still need to provide evidence in support of its health and safety justification and also consider alternative options. The NHS Trust proposed an alternative way in which Ms Chaplin could wear her crucifix but Ms Chaplin refused this option.
Requirements for men and women
While an employer’s dress code need not have provisions that apply identically to men and women, an employer should ensure that the dress code as a whole applies the same standard to both men and women e.g. requiring both men and women to adhere to conventional standards of dress and appearance. However, what is a conventional standard can only be determined by reference to current social attitudes and fashion trends. Employers should therefore be mindful to describe such standards in a neutral manner e.g. business casual rather than being tied to specific items of clothing which may over time no longer equate with the conventional standard. If it is necessary to refer to specific items of clothing, then it is important that the dress code is regularly reviewed to ensure it does not become outdated.
Tattoos and piercings
Body piercing and tattooing are increasingly popular and visible forms of self expression. However, employers often worry about perceived or actual reputational damage if pierced and tattooed employees deal with customers and clients face to face.
The ACAS Guidance notes that employers may wish to promote a certain image through their staff which they believe reflects the ethos of their organisations and that sometimes this can result in staff being asked to remove piercings or cover tattoos while at work. However, the ACAS Guidance stresses that employers should carefully consider the business reason behind the rule and clearly communicate expectations to all staff. For example, employers should give some thought to whether visible tattoos are ever acceptable, whether there are limits in size and whether the policy should differentiate between client-facing and back-office roles.
But can employers ban employees getting a tattoo or even dismiss or refuse to employ someone who already has a tattoo? Although there is no stand alone claim or protection against being dismissed or not employed because of a tattoo or body piercing, an employee with at least 2 years’ service can claim that his or her dismissal is unfair. Employers therefore need to consider carefully how to introduce and apply any new policy into the workplace bearing in mind that existing employees may already have tattoos or piercings.
Conclusions
An employer should ensure that it has a sound rationale for any dress code it imposes on its employees as a vital element of any defence against an employee’s claim of discrimination or unfair dismissal. As the ACAS Guidance notes, an employer should also consider consulting with its employees over any proposals. This is likely to flush out any potential issues early on so that the dress code is more likely to be acceptable to the workforce and therefore more likely to be complied with. It is also sensible to ensure that there is an element of discretion or flexibility in any dress code so that special cases can be dealt with appropriately, whether the reason relates to religion, disability or other exceptional personal circumstances. Once agreed or decided upon, the dress code (and any sanctions for breach) should be clearly communicated to all employees and applied consistently and fairly.
