Dress codes and discrimination

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Introduction

Under the sex discrimination legislation, there have been unsuccessful challenges to dress policies where women must wear skirts or that men must wear ties or have short hair. More recently, a number of cases have been brought under the employment equality (religion and belief) regulations, claiming discrimination on this basis.

These cases have provoked questions and concerns, which have been elevated by media interest, concerning the potential risks that employers face by imposing dress codes on employees. Many employers now face confusion in trying to implement their dress codes, in fear that they may fall foul of the law. However, the principle remains that the implementation of a dress code is still legitimate, provided that it is justifiable and is applied consistently. Dress codes can also allow some differentiation between rules applying to men and women, as long as they are consistent overall.

We have looked at the Azmi case, which involved prohibiting a teaching assistant from wearing a veil, and have put together some practical tips for NHS employers, when considering dress codes.

The Azmi case

The recent case of Azmi v Kirklees Metropolitan Council 2006 involved a teacher (Ms Azmi) who was suspended from her position as teaching assistant for refusing to obey a management instruction to remove her veil while teaching. Ms Azmi claimed direct and indirect discrimination. She argued that she was treated less favourably, by being suspended, on the grounds of her religious belief. She also said that as a Muslim employee, she would be less likely to comply with the requirement that veils may not be worn, than a non Muslim employee, for whom wearing a veil was not a religious requirement.

Both Ms Azmi's claims failed. The Tribunal was satisfied that any employee who covered his or her face with a veil would have been treated in the same way, and the reasons for refusing permission to wear her veil were not related to religious belief. The indirect discrimination claim also failed as the tribunal was guided by evidence put forward by the council that the wearing of the veil hindered Ms Azmi's ability to carry out her role. This evidence showed that visual stimuli and non verbal signals that are read by looking at human faces, are an important part of the way children learn to communicate. As such, the restriction of wearing the veil which only applied to when Ms Azmi was teaching the children in the classroom, was a proportionate means (it would have been unlikely to be so if she had been asked to remove the veil when she was not teaching and was simply completing paperwork in the classroom) of achieving a legitimate aim - that aim being ensuring that the children could most effectively learn.

Practical Considerations

  • Employers must consider the reasons behind each part of its dress code.  Within the NHS, specific clothing is required for health and safety or hygiene reasons, for example, in the case of theatre staff.  That justifies asking a Christian employee who wears a cross to remove it.  However, sometimes the rationale for dress codes is less obvious and it is in these circumstances that employees must critically review their dress codes and policies.  For example, non medical staff, patient facing or managerial roles where employees deal with external contacts may require “smarter” clothes, but employers must consider whether the same dress code is applicable to administrative roles that are non “client” facing. Within the same organisation, it is likely that different dress codes may be applicable for different areas and caution must be exercised in adopting an approach of “one size fits all” as this may well be difficult to justify if the roles of the employees to whom the policy applies vary considerably. 
  • Employers must be aware of the risks of discrimination. When devising or reviewing a dress code, employers must ask themselves whether the dress code will require employees to dress in a way that contravenes their religion or belief.  Codes may directly or indirectly restrict:
    • the length of beards for men
    • the wearing of headscarves
    • the wearing of burkahs and veils
    • the wearing of jewellery (such as a Christian cross) or a piercing.
  • If a rule is likely to conflict with an employee’s religion or belief there must be clear evidence to demonstrate objective justification. This analysis may be required on a case by case basis.  In the Azmi case, the council were able to demonstrate that the school had allowed Ms Azmi to try teaching with the veil and they had observed that she was less effective in communicating with the children than she had been without the veil.  Also, they had sought guidance from the council.  There must be a proper assessment of whether a particular mode of dress presents a genuine risk.  For instance, an employer may assume that a burkha, (which has significantly more folds than the employer’s standard uniform) may be a greater hygiene risk than the employer’s uniform or other items of clothing.  However, the employer cannot know this until a proper assessment has been carried out and would be unlikely to be able to justify a dress code on the basis of this assumption.  The means of carrying out such as assessment may include taking a swab from the burkha and obtaining an expert analysis and advice.  However, it would be critical to ensure that swabs were taken from other people wearing the employer’s standard uniform, to ensure a consistent approach.

Key points for Employers in the NHS

  • Employers should establish local dress codes and policies which give transparent information to their staff.
  • Employers should not be afraid of dress codes.  There are many legitimate health and safety, business and practical reasons in the NHS why dress codes are not just important, but sometimes vital.  However, employers must ensure that they have a legitimate reason for imposing a dress code that can stand up to scrutiny.  All existing and potential dress codes should be reviewed with this in mind.
  • Dress codes should be drafted in clear terms, listing examples, where possible.  A widely worded policy requiring “smart appearance” may mean very different things to different people, so a few examples of what is meant by “smart appearance” may be appropriate, in perhaps a “do” versus “don’t” format.
  • Employers should carefully review the accepted standards of dress on an ongoing basis – perceptions of what is “acceptable” clothing at work do change, and dress codes may become outmoded and more difficult to justify as a result.
  • Consult with employees and potentially their representatives and unions, particularly if there are a significant number of employees of a particular religion who may be affected by a dress code.  Employers will undoubtedly be judged as more reasonable by a tribunal if they have made attempts to do so.
  • Be sensitive in the approach to the enforcement of a code.  If an individual feels that an employer is trying to compromise their religious beliefs by enforcing a dress code then it can be upsetting for that employee and a heavy handed approach is likely to exacerbate this.
  • Employers must be consistent in their approach.  It will be very difficult to justify a dress code in a tribunal if that code is otherwise widely flouted by other employees with the employer's tacit consent.

Sharing best practice - St George's University of London

This document from St George's University of London, outlines what reasonable accommodations this organisation may offer for reasons of belief or religious observance. Such accommodations may be requested by students undertaking healthcare work / study both within the university and while on placement. For more information access their religion and belief code of practice.

We would like to hear what you are doing in your organisation, so if you would like to share any information, guidance or advice please email equalityanddiversity@nhsemployers.org.

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