What not to wear: a look at religious discrimination
There have been many cases involving employer’s dress codes and whether they amount to religious discrimination.
One significant case was that of Eweida v British Airways plc  where BA did not allow its staff to wear visible jewellery. Ms Eweida could wear her Christian cross on a necklace but it had to be covered by her uniform. Ms Eweida objected to this as she wanted to wear her cross as a visible symbol of her faith.
The Court of Appeal dismissed Ms Eweida’s claims because she was not put at a disadvantage as her need to wear a visible cross was a personal choice not a Christian requirement, and also she was the only one affected. However, Ms Eweida took her case to the European Court of Human Rights (ECHR) where her claim was upheld under Article 9 of the European Convention on Human Rights which is the right to manifest religious belief.
So what rights do employees have and what do employers have to bear in mind when drafting a dress code?
Religion or belief is one of nine “protected characteristics” covered by the Equality Act 2010 (the Act). Employers must not:
- Discriminate directly by treating a job applicant or employee less favourably because of religion or belief e.g. an employer must not dismiss an employee because the employee is a Christian.
- Discriminate indirectly by applying a PCP (provision, criterion or practice) that places job applicants or employees of a particular religion or belief at a disadvantage. Such discrimination can, however, be objectively justified e.g. an instruction to remove a veil, which covered all but the employee’s eyes, when carrying out her duties as a bilingual support worker was not indirectly discriminatory. The instruction was a proportionate means of achieving the legitimate aim of providing the best quality education. (Azmi v Kirklees Metropolitan Borough Council)
- Subject a job applicant or employee to harassment related to religion or belief e.g. calling of names/bullying in the workplace.
- Victimise a job applicant or employee because they have made or intend to make a complaint under the Act, or because they have done or intend to do other things in connection with the Act.
As can be seen from above, dress codes can give rise to indirect discrimination as they are criteria that can have a negative impact on employees who, due to their religious beliefs, feel the need to wear certain items such as turbans, hijabs, crosses or bangles. Employers should consider whether any restrictions on these types of items can be objectively justified i.e. is the restriction or ban a proportionate means of achieving a legitimate aim?
Legitimate aims could be health and safety, projecting a certain kind of public image, a requirement of neutrality or quality of education. However, having a legitimate aim is just the start. Employers then need to assess the discriminatory effect, how many people it effects, and other alternatives to achieve the legitimate aim.
As is often the case, it depends on the facts of each case but employers should at least be aware of this legal landscape especially as it is constantly moving with two ongoing cases at European Court of Justice on the issue of bans on the Muslim headscarf. Bearing in mind the decision on Article 9 in Eweida, we shall wait to see which way those cases go.
(For other items on the above topic, see Uniform requests and religious discrimination )