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15 May 2014

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Insight: Dress Rehearsal

Defining and explaining your practice’s dress code can help to guard against misunderstanding and potential discrimination claims

All employers are likely to want their employees to look smart and presentable while at work, regardless of whether they are in a public facing role. An employee’s appearance contributes to the reputation of a practice, both with other healthcare professionals and the general public.  

In September 2013, the Department of Health (DH) announced that there would be a review into whether NHS staff in England should be allowed to wear the niqab (a veil worn by some Muslim women which covers the head and the face, except the eyes). However there is currently no guidance on the issue and there is no consistent approach. Some NHS employers say that a face veil is permitted for religious reasons, some claim that it is not permitted in order to ensure effective communication with patients.    

In the absence of concrete guidance, what approach should a practice take when deciding what constitutes acceptable dress in the workplace, both from a religious and general perspective? 

How to implement a dress code

For practices wishing to implement a dress code, the most effective way to do so is by including a dress code policy in the staff handbook setting out the practice’s policy on appearance and dress at work.  

To carry more weight, a dress code policy should include an explanation of the purpose or reason for the policy. Some reasons that are likely to be relevant are: health and safety requirements, identification, promoting a positive image, ensuring that staff look professional, protecting employees’ own clothing and helping staff decide what clothing is appropriate to wear to work.

What is considered appropriate attire may depend on the type of work that a particular employee undertakes. For example, you may want receptionists to dress smartly with no specific uniform, while requiring nurses to wear uniforms for identification and health and safety reasons.  

What about religious dress? 

The manifestation of religious beliefs should always be considered when drafting dress codes. This will mean thinking about how staff can wear religious or cultural dress, including headscarves, turbans and skullcaps, alongside any uniform. If a dress code requires someone to remove an item of clothing, and this requirement is challenged, the discriminatory impact of this requirement will need to be justified.  

An employee is protected from discrimination on the grounds of religion or belief under the Equality Act 2010. There are two main types of discrimination which can be claimed:

 – Direct discrimination where an employer treats an employee less favourably than another employee because of their religion or belief. An example of this would be an employer telling an employee to either remove their turban or go home on the basis that they find the turbans offensive. Direct discrimination cannot be justified.

– Indirect discrimination where an employer applies a provision, criterion or practice that disadvantages an employee of a particular religion or belief. The obvious example of this is a uniform policy which bans the concealment of the face at work. Wearers of the niqab will be at a disadvantage compared to the vast majority of employees but the policy is applied across the board. Indirect discrimination can be justified if the employer can establish that the provision criterion or practice is a proportionate means of achieving a legitimate aim.

Readers may be familiar with the high profile case of Eweida and British Airways (BA). This related to BA’s implementation of a dress code that required check-in staff to remove any jewellery worn over their uniform. Ms Eweida, a Christian, argued that the requirement for her to remove her crucifix violated her freedom to manifest her religious belief under Article 9 of the European Convention on Human Rights. Finding in her favour, the European Court of Human Rights (ECHR) ruled that BA’s argument that it had a corporate image to preserve did not justify their prevention of an employee from manifesting their religious belief in this way.  

Of significance for practice managers is that, in a similar case, the ECHR accepted a justification argument where the removal of a crucifix in a hospital context was required on health and safety grounds. This means that if an employer has a genuine health and safety reason for preventing the manifestation of a religious right, the justification argument could succeed.

Whether or not certain religious dress is allowed in the workplace is left up to the employer’s discretion and this is no different in the healthcare sector where the niqab has similarly become a hot topic in recent months.  

In 2007, we saw the case of Azmi and Kirklees Metropolitan Council in which a Muslim classroom assistant sued her employer for direct and indirect discrimination on the grounds of her religion. Mrs Amzi was a language teaching assistant and was told that she was not allowed to wear the niqab while teaching students. Mrs Amzi lost her case essentially because (a) the dress policy applied to all employees (ie. Mrs Amzi was not treated any differently from an employee who sought to conceal their face for non-religious reasons) and 

(b) on the facts, the employer had evidentially sought to balance Mrs Amzi’s rights against the importance attached to non-verbal communication when teaching children.  

As mentioned, the DH is conducting a review into whether NHS staff in England should be allowed to wear the niqab, and one can immediately see why it is a relevant issue. Do patients feel more comfortable/confident if they can see their doctor’s face? How important is it that people can see the receptionist smile at them when entering the practice? 

Enforcing the rules

If an employee breaches the dress code, in the first instance, it may be worth raising any issue or concerns informally. Some employees may feel affronted as a result of any perceived criticism of what they are wearing or how they look – so it is sensible to raise concerns in a sensitive way, and privately. In the first instance, simply referring an employee to the dress code may be sufficient.  

For serious issues, or continued failures to comply with the dress code, the employer should deal with the issue as it would any other disciplinary matter by investigating the issues, arranging a hearing and then deciding upon an appropriate sanction.  

At its most serious, a continued failure to comply with a dress code could amount to a failure to follow a reasonable instruction and may justify formal warnings, and potentially dismissal, depending on the circumstances and nature of the job.

Discrimination and protecting your position

To best protect their position against discrimination claims arising out of uniform policies, the following points should be adhered to by practice managers:

Practices should carefully consider the justification for the policy. In the event the matter is before a tribunal, this is likely to be key evidence and should therefore be used as an opportunity for setting out the practice’s position with regard to the importance of the uniform. 

Practices must ensure that the policy goes no further than is required to protect their legitimate interest. If the reason for the policy is to allow the effective communication with patients then it may be appropriate to restrict strict bans on certain forms of dress (for example, the niqab) to times when the employee is in contact with patients only. Is the justification for the policy relevant to all employees?  

Practices should carefully consider any requests from employees who do not want to (or do not feel able to) comply with the policy. Practices should ensure that there is an effective process for dealing with any such requests promptly, fairly and consistently (where appropriate) and that this process is documented. The case law to date makes it clear that employers who open a reasonable dialogue with the employee in an attempt to resolve the situation have the best chance of justifying their position.