Dress codes and discrimination

01/04/2010

By Nick Hobden, Partner and Head of Employment.

The case of Ms Eweida hit the headlines some time ago when she sought to claim that she had suffered religious discrimination as a result of BA's policy preventing employees from wearing visible jewellery. Ms Eweida wanted to be able to wear a cross, which she saw as an important symbol of her Christian faith.

The Employment Tribunal (ET) that heard Ms Eweida's initial claim found in favour of BA. The panel took account of the fact that wearing a cross is not a mandatory requirement of the Christian faith, but something that some Christians choose to do. As a result, the ET was not convinced that Ms Eweida had been put at any particular disadvantage when compared with her colleagues.

Ms Eweida decided to appeal to the Employment Appeal Tribunal (EAT). There the EAT once again ruled that Ms Eweida's claim should fail. Her claim was principally one of indirect religious discrimination. As a result, she was required to identify:

• a provision, criterion or practice that applied to all
• which put people of the same religion at a particular disadvantage and
• which put her at that disadvantage.

The EAT stressed the fact that it is not enough just for Ms Eweida to feel that she was being put at a disadvantage; it had to be possible to point to others of the same religion who were also put at this disadvantage. But Ms Eweida failed to show that any other people of the Christian faith felt that they were disadvantaged by this rule.

Still dissatisfied with the decision, Ms Eweida appealed to the Court of Appeal. But the Court of Appeal agreed with the EAT. It expressed concern that if people could bring claims such as this, based solely upon their own assertion that a particular rule or measure impacted upon their religious beliefs, this would place an unfair burden on employers.

The case law concerning discrimination (particularly religious discrimination) and its impact on dress codes is interesting. It seems that employees have, more often than not, been on the losing side in the cases that have attracted wide-spread press attention. One thinks of both the Eweida case and the case of Azmi, the teaching assistant who brought a claim after she was told that she could not wear the niqab at work. Whilst these notable failures by employees might give employers some confidence in implementing and policing their dress codes, it is still important to think carefully about the impact that such policies might have.

Had Ms Eweida been able to show that a larger group of Christians were disadvantaged by this dress code, BA would then have had to work much harder to justify their policy. The Court of Appeal was not required specifically to consider the issue, but it indicated that it might have felt that such a dress code was justified. That said, employers should:

• devise dress codes carefully - clearly document their purpose and
• consider consulting their workforce to flush out any concerns.