Dress codes have hit the headlines recently highlighting some of the issues arising when employers operate dress codes. A woman was reportedly sent home from her job as a receptionist for refusing to wear two to four inch heels. She responded by setting up an online petition calling for a change to the law to make it illegal for a company to require women to wear high heels at work and calling current formal work dress codes “out-dated and sexist”.
Meanwhile a Belgian employee dismissed for wearing an Islamic headscarf at work had her case heard by the Advocate General (“AG”) in the Court of Justice of the European Union. This article looks at the legal issues arising.
In general terms having different dress requirements for men and women will not amount to sex discrimination where the dress code applies a conventional standard of appearance and taken as a whole neither gender is treated less favourably. For example, a requirement for men to have hair “not below shirtcollar length” which did not apply to a woman was held to be lawful in the context of the dress code as a whole. Similarly, a dress code which required a man to wear a shirt and tie but women only to dress appropriately and to a similar standard was ruled not to be discriminatory.
In the Belgian case G4S Secure Solutions operated a dress code banning employees from wearing visible religious, political or philosophical symbols because its corporate policy was to be strictly neutral on such matters.
A Muslim employee challenged this as discriminatory on the grounds of her religious belief. The AG ruled that the code was not discriminatory because it affected all employees equally and was not based on stereotypes or prejudice against particular religions or religious beliefs generally. Even if it was discriminatory, the AG held that G4S had a defence because the headscarf ban could be regarded as a genuine, determining occupational requirement bearing in mind the company’s (legitimate) corporate objective of religious and ideological neutrality given the broad range of the company’s clients in the public and private sectors.
According to the AG the dress code was appropriate and necessary for achieving this objective.The AG noted that unlike other protected characteristics such as gender the practice of religion is an area over which an individual can choose to exert an influence. An employee may therefore be expected to moderate the exercise of their religion at work depending upon the circumstances of each case.
On the separate issue of justification of indirect or “barrier” discrimination the AG held that the factors considered as part of the occupational requirement exception were relevant and included the size and conspicuousness of the religious symbol, the nature of the employee’s activity, the context in which the job was performed and the national identity of the member state concerned.
For further advice please contact our employment law team.
Please read Reliance on information posted in our Terms of Website Use - see Legal section - before relying on this commentary.