Dress codes and discrimination

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There is always considerable debate around dress codes in the workplace. In June 2018 The Equality and Human Rights Commission issued new guidance clarifying the law on religious dress in the workplace, including surgery as an example. 

Workplace dress in the spotlight

  • NEW - Many healthcare workers wear head coverings as part of their faith, including Muslims, Sikhs and Jews. The British Islamic Medical Association has developed a guide Safe Wearing of Head coverings/Hijab during COVID-19. This guide is to facilitate good practice and minimise any risk of infection to patients on the above.
  • Emma Wiley, a microbiology registrar and infection control fellow at University College Hospital London and executive committee member of the British Islamic Medical Association, has written a blog Do NHS dress codes cater for all staff?  highlighting the issues of religious dress in the workplace for Muslim women. 
  • In 2015 Members of parliament debated a rule around women having to wear high heels in the workplace, following a petition calling for it to be made illegal. The debate and subsequent parliamentary inquiry also highlighted other issues, such as women being asked to dye their hair blonde, wear revealing outfits or re-apply make-up.  

    Following the debate in May 2018 guidance was published Dress codes and sex discrimination – what you need to know. This guidance has been written following a recommendation from the Parliamentary Women and Equalities Select Committee and the Petitions Committee.
  • Similarly the European Court of Justice issued a joint judgment in the cases of two women, from France and Belgium, who were dismissed for refusing to remove headscarves and claimed religious discrimination on this basis. The court concluded that the organisations wish to project a neutral image was legitimate and allowed internal rules banning political, philosophical or religious symbols. At the same time it also found that the facts of the two cases would constitute indirect discrimination and had referred them back to the national courts to consider whether, based on the specifics, they would be unlawful.

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.

In response the Equality and Human Rights Commission chief executive Rebecca Hilsenrath said: 

"This Court of Justice ruling does not mean businesses can target women wearing the hijab for dismissal, or introduce policies which ban religious dress from customer-facing roles. We believe our laws do not need to change and the guidance we issued to employers on religion or belief includes advice on this issue. Any employer thinking of changing policy should consult that guidance before making rash decisions.”

The principle remains that the implementation of a dress code is still legitimate, provided that it is justifiable and is applied consistently and is proportionate. Dress codes can also allow some differentiation between rules applying to men and women, as long as they are consistent overall.

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, which 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 employers 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.

Organisations should consider how the imagery of staff and students used in their community can convey inclusion of diverse cultural and religious backgrounds.

Key points for employers in the NHS

  • When considering a dress or uniform code, ensure you conduct an equality impact analysis and consult with your staff. 
  • Be mindful of how certain combinations of characteristics such as religion and gender might mean greater impact on certain groups – for example some Sikh men or Muslim women.
  • 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 out of date 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 disregarded by other employees with the employer's tacit consent.
  • Consider how the imagery of staff can convey inclusion of diverse cultural and religious backgrounds.

 


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