This time last year, television presenter Jeremy Paxman caused a social media storm when he suddenly appeared on Newsnight sporting a full facial beard. Stories of employees having been fired or overlooked for promotion owing to visible tattoos or piercings are not uncommon.
The issue of keeping up appearances while staying within the law continues to cause headaches for employers. Dress codes present a potentially complex issue because of the conflict between the demands of the workplace and the right of employees to personal and religious expression. Lack of consistency in recent case law has put further pressure on employers to handle this issue carefully, and to implement clear and appropriate dress code policies.
Front line employees project the employer’s corporate image, which usually means following a recognisable or distinctive, and safe, dress code. Yet employers are regularly challenged by a degree of uncertainty regarding which demands are fair – and legal – to impose on staff, especially when it comes to displays of religious faith and body art.
Recent case law suggests that, in many instances, it is acceptable to allow employees to demonstrate their religious faith through their dress provided it does not inhibit them from carrying out their role or compromise any health and safety policies.
One of the common mistakes employers make is to devise and implement a new dress code without consulting employees first. New guidance from Acas suggests that consulting with employees over the aims and purpose of any proposed dress code at the pre-implementation stage will help ensure that it is reasonable. Importantly, this approach will also help identify members of staff who may find adhering to it problematic.
Employers must be able to justify their reasons for prohibiting articles of clothing or jewellery which denote a particular religious faith. Otherwise, they could face a claim for indirect discrimination against certain groups of employees.
Striking the right balance between promoting diversity and encouraging equality is tricky, but the key is to make sure genuine business or safety requirements underpin any restrictions imposed. Whether the cases involve flight attendants wearing necklaces bearing a cross or primary school teachers wearing a full veil, one key question has been asked by tribunals to help clarify this issue: “Does the particular article inhibit the individual from doing their job to the required standard in this particular working environment?”
Tattoos and body piercings
It is not uncommon for employees in customer-facing roles to be required to remove jewellery, including body piercings, and to cover tattoos in the workplace. There is no specific legal protection for an employee who has been dismissed for having a tattoo. Having said that, it is worth bearing in mind that some tattoos are symbolic, religious requirements and even culturally significant, so handling any such issue should be done with great care and sensitivity.
There are a number of key points that employers should consider when implementing or amending a dress code. They should:
- always avoid any form of discrimination in a dress code policy
- remember that imposing certain standards of dress for health and safety reasons is acceptable
- apply dress codes equally to men and women (although the codes themselves may make different requirements on male and female employees)
- make reasonable adjustments for disabled employees.
Crucially, employers should always make sure there is a sound business reason for imposing personal appearance criteria on staff, and that a clear written policy has been implemented and widely communicated. They should also avoid the greatest pitfall of all: believing that clients will automatically take offence at an employee’s personal appearance or manifestation of religious faith. Instead, employers should embrace the notion that a rich and diverse workforce might in fact translate to an equally rich and diverse customer base.
15 Sep 2014: Sarah Tahamtani (partner at the law firm Clarion)