6 November 2006

Every morning we get up and get dressed but how much choice do we really have on what to wear when we go to work? Could a company’s standards of appearance actually be an infringement of its employees’ human rights or amount to unlawful discrimination?

Earlier this month Jack Straw, Leader of the Commons, provoked further public debate on the Islamic veil with his request for Muslim women to remove the head covering, which he considered to be a barrier to communication. For one employee, a classroom assistant in a primary school, this was also a view shared by her employer and which became the focus of a case considered last week by an employment tribunal in Leeds.

In Azmi v Kirklees Borough Council, the tribunal were presented with a number of complaints under the Employment Equality (Religion or Belief) Regulations 2003. Mrs Azmi was suspended from work when she refused to remove her veil. She claimed that requiring her to do so was direct discrimination on the grounds of her religious beliefs and that the general practice of not allowing the veil to be worn also amounted to indirect discrimination. She further claimed both harassment and victimisation based on the employer’s subsequent handling of the matter. On the facts of this case, the tribunal rejected all but Mrs Azmi’s victimisation claim and awarded her £1,100 for the employer’s failure to follow grievance procedures correctly. However, Mrs Azmi now intends to take her case to the Employment Appeal Tribunal amongst speculation that the case could ultimately be put to the test by the European Court of Justice.

In contrast, British Airways (BA) does allow Muslim and Sikh employees to wear hijabs and turbans but they too now face a similar claim. BA’s dress code policy states that jewellery, including religious symbols, must be worn underneath the employee’s uniform, with the exception of the traditional Sikh bangle that is too difficult to conceal. A Christian check-in worker at Heathrow is arguing that she should be allowed to declare her faith publicly, as her Sikh and Muslim colleagues are permitted to do, and that her suspension without pay for refusing to conceal her crucifix is unlawful religious discrimination.

Other disputes over an employer’s policy on appearance include:

• Mohmed v Virgin Trains, where the employee unsuccessfully claimed that he had been dismissed for not shaving his beard below the minimum 4 inches acceptable to his religion.
• In a case, which was settled, PC Bloomfield claimed discrimination on the grounds of sexual orientation against Hampshire Constabulary when he was threatened with suspension for wearing a single earring.
• In the sex discrimination case, Thompson v Department for Work and Pensions, agreement was eventually reached for male employees at Job Centre Plus, who did not have contact with customers, not to be required to wear a shirt and tie provided 7,000 similar applications were dropped.

For employers to avoid complaints of discrimination they must ensure that any restrictions they impose, which may have a discriminatory effect, can be objectively justified. Justification has been held to include health and safety for hygiene reasons or for members of the public to identify with in the case of emergency. In Asmi (above) the need for face-to-face contact was of sufficient significance to outweigh the disadvantage caused.

Employers should also note that imposing limitations on what people wear can constitute a breach of the Human Rights Act 1998 under Article 10, the right to freedom of expression. However, this is not an absolute right and restrictions can be permitted on a number of grounds, importantly one of which is the protection of the reputation or rights of others. Often the purpose of a dress code is to protect the company’s corporate image, which is therefore likely to be a legitimate aim. However, employers should still balance this need against the rights of employees to choose what they wish to wear.

For staff working directly with patients at East Lancashire Hospital Trust the choice of what socks to put on in the morning has become much less of a problem. In a new dress code, which bans tight clothes, unusual hairstyles and tattoos, employees are also forbidden to wear novelty socks. Whilst the Trust claims this is necessary to present a professional and business-like approach, a poll conducted by Network NHS reveals that 25% actually think they should be compulsory!