Attempting to regulate employees’ appearance through a dress code can be an absolute minefield for employers, with so much scope for falling foul of the law and breaching employee rights. And if employers are struggling to navigate the legal landscape so, it seems, is the CJEU, with two recent cases both involving very similar facts (Muslim employees dismissed for refusing to remove a headscarf) resulting in apparently diametrically opposed preliminary rulings and underlying reasoning about whether the dismissal amounted to direct discrimination on grounds of religion.

On the one hand, a business may wish to restrict employees’ dress and appearance and have entirely legitimate reasons for doing so but, on the other, employees also have a right to freedom of expression, the right not to be subjected to unlawful discrimination on grounds of religion or belief, or on grounds of sex, or through a failure to make reasonable adjustments to the application of the employer’s dress code for disabled employees, and the right not to be dismissed unfairly for a breach of the employer’s dress requirements.

One major benefit to having a written dress code is that, when well-drafted, it can make plain to employees what the employer does and doesn’t regard as acceptable - sensible and clear communication with staff can go a long way to preventing dress-related workplace problems arising in the first place. Of course, it is important to think carefully about what’s in the dress code. If a court or tribunal has to get involved in a workplace dispute about an employee’s dress or appearance, it is likely to have to weigh up the competing interests of the employer and the employee and work out where the appropriate balance lies. Employers wishing to implement and enforce a dress code governing employees’ dress or personal expression should think very carefully about whether the organisation has a genuine and justifiable business need to prohibit certain forms of dress/expression and, as appropriate, to articulate that in the dress code so that staff understand the rationale.

Potentially legitimate business reasons may include health and safety reasons (particularly relevant to workplaces requiring especially high standards of hygiene, such as food preparation, or medical workplaces or where loose clothing could create an obvious danger, such as when operating machinery or creating a tripping hazard), the desire to project a particular image of the organisation through its workforce, or where the appearance of neutrality is important and where that apparent neutrality would be compromised by an employee’s dress. But having a business interest in regulating staff appearance – even if for an entirely legitimate reason - is not necessarily enough by itself; businesses should be thinking about whether the interests of the business (whatever those may be) in imposing a restriction its staff, actually outweighs the personal interests of the staff in being able to choose how they express and present themselves through their appearance.

It will also be very important to ensure that any dress code does not discriminate on grounds of gender. While it may be acceptable in law to impose different specific dress requirements on men and women, where these relate to currently accepted and lawful societal norms (for instance a requirement that men, but not women, wear a tie), the dress code must not impose a higher general standard on one gender than the other. So while an employer may potentially be entitled to impose a requirement that employees do not display visible tattoos or piercings, it is very unlikely to be justifiable to apply that restriction to only one gender.

And if a disabled employee’s disability makes it more difficult for them to comply with a particular aspect of an employer’s dress code (i.e. puts them at a ‘substantial disadvantage’) in comparison to someone without their disability, the employer will need to make reasonable adjustments to the way it applies its code to the disabled employee.

This is an area of law that is likely to develop – and a final decision on the two conflicting CJEU cases is expected towards the end of the year, so watch this space. In the meantime, ACAS has very recently produced some helpful guidance for employers about dress codes:

Please contact our Employment team if you have any questions about the issues raised in this article. 

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Louise McCartney

Senior Associate

+44(0)20 7551 7699

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Posted on 09/09/2016 in BWB Publications

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