Dress codes – are bans no longer banned?

David Merlin-Jones

Dress codes are back in the news again this week. The European Advocate General (AG) Kokott gave an opinion in Achbita and anor v G4S Secure Solutions NV (C-157/15) that a security company’s ban on headscarves in its dress code and its subsequent dismissal of a Muslim woman, who refused to take hers off, was not a directly discriminatory act. The AG’s opinion is effectively a draft judgment – it is not binding on the ECJ, but in practice the ECJ usually follows it.discrimination

Direct discrimination requires a person to be treated less favourably than another has been or would be treated in a comparable situation and, in this case, on account of a protected characteristic such as religion. While the headscarf ban could have been considered indirectly discriminatory, the AG had not been asked to consider that point.

The AG applied a very clear test to the ban. Firstly, she asked if the firm’s code of conduct was directly discriminatory in its statement that employees “are not permitted to wear any religious, political or philosophical symbols while on duty”. The firm’s answer was no, as the only discrimination is between employees who want to wear such symbols and those who do not – this is about individuals, rather than religions.

The AG stated that even if it was directly discriminatory, the ban fell under an exemption allowing discrimination on the basis that there was a genuine occupational requirement (OR) and the objective was legitimate and the requirement proportionate. The security firm’s ban was part of the firm’s desire to present a ‘neutral’ face to the world, favouring no particular group.

What does this mean for your company’s dress code?

It is clear, and the AG noted, that a number of context-specific factors need to be considered before it can be said a given ban is an OR: the size of the symbol, the employee’s activity, the context of the activity and which Member State this involved.

In the UK, the bar for an OR has been set very high. To insist on an employee having or not having a protected characteristic would ordinarily be direct discrimination but an OR acts as a general defence to the claim in much the same way as objective justification does to an indirect discrimination claim. To make out the OR defence:

  • the application of the requirement is a proportionate means of achieving a legitimate aim; and
  • the person to whom the requirement applies does not meet the requirement.

An example of an OR is when a theatre company might specifically seek a black man for the role of Othello on the grounds of authenticity.

As is often the case with employments rules, context is everything. This is particularly the case with dress codes. Two ECHR cases from the UK demonstrate this neatly. In Eweida v United Kingdom [2013] ECHR 37, two employers’ dress codes banned, among other things, employees wearing Christian crucifixes round their necks. Ms Eweida, a British Airways check-in clerk, successfully claimed indirect discrimination. However, Ms Chaplin, a nurse at an NHS hospital, did not.

A key difference was that Ms Eweida’s crucifix did not interfere with her work, or British Airways’ corporate image, so a ban was disproportionate. On the other hand, Ms Chaplin’s cross was banned on the basis of health and safety and the risk of a struggling patient grabbing hold of it and injuring Ms Chaplin or themselves. There was a genuine OR based on clinical safety.

For most employers, dress codes do not present problems as there is no need to make outright bans. Where this is necessary for, for example, health and safety reasons, make sure the requirements can be justified and/or are a proportionate means of achieving a legitimate aim. Otherwise, you might just find that your bans are banned…

Comments published on Employment Talk do not necessarily reflect the views of Allen & Overy.

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