Employment law surrounding age, dress and sex descrimination has always been an emotive issue. A number of cases in the UK highlight where employers may have taken things too far.

1. IBB Solicitors employment team article
published in HR Magazine
4 February 2013
08456 381381
ibblaw.co.uk
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How image and dress codes could lead
to a discrimination case
Erica Humphrey , 04 Feb 2013
When Nadia Eweida recently won her case against
British Airways, a media furore followed.
And around the same time, John McCririck made the headlines
announcing that he intended to file a £3 million claim against Channel
4 for age discrimination after he was dropped from their race
presenting team. The media stories suggested that he was alleging
Channel 4's decision to sack him was partly related to his 'out of date'
presenting style that made him unsuitable for the 'revamped' image of
Channel 4's team going forward.
The common theme for both British Airways and Channel 4 (albeit
perhaps not entirely obvious at first glance) is that complaints of
discrimination arise out of issues relating to image and branding. The
John McCririck case is still in its very early stages, but Channel 4
denies that John McCririck's departure had anything to do with his age
(watch this space for more on that case). In contrast, British Airways
openly admitted that its policy was imposed for the benefit of its
corporate image.
Eweida had a customer facing role at British Airways. Her employer's
dress code banned her from wearing her Christian cross necklace at
work. She alleged that British Airways' ban on her wearing her cross
was discriminatory on the grounds of her religious belief and the ECHR
agreed with Eweida. British Airways tried to justify their discriminatory
policy on the basis that it was necessary to protect its corporate image.
The Court was not convinced by British Airways' evidence that visible
religious symbols had any negative impact on their corporate image.
Also, as British Airways had watered down their complete ban and
allowed certain 'authorised' religious symbols to be worn at work, it was
not convinced that British Airways really had conviction in its argument
that a complete ban was crucial to protect its corporate image. British
Airways' reasons for its policy failed to outweigh Eweida's right to
manifest her religious beliefs.
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The headlines in respect of Eweida's case suggested that the decision
had put a complete stop on dress codes in the workplace. But what the
headlines failed to report was the ECHR's decision in Ms Chaplin's
case on the very same day.
Ms Chaplin was a nurse employed by an NHS Trust and she was also
banned from wearing her cross necklace in the workplace. The ECHR
accepted that the policy was discriminatory as with Eweida. However,
the Court rejected her claim for discrimination as it accepted that her
employer had a legitimate reason for imposing the ban. The employer
did not allow her to wear her cross at work as it gave rise to a health
and safety risk. More importantly, the NHS Trust was able to give
tangible evidence to back up their concerns by citing real instances
where jewellery had caused a health and safety risk.
So employers will be pleased to know that workplaces dress codes are
still appropriate. Such dress codes do have their benefits ­ a business
can establish its image and brand through dress code and limit risks
exposed by health and safety concerns. The question on everyone's
lips is how far can a dress code go before it becomes discriminatory?
Unfortunately, there are no hard and fast rules ­ ultimately every case
will be determined on its own facts. While the cases discussed above
relate to discrimination on the grounds of religion, this is not the only
protected characteristic that may be disadvantaged by dress codes. As
identified by John McCririck, a requirement for a 'modern' image could
disadvantage those in an older age group.
When introducing or revising your dress code, you should consider the
following and keep a paper trail of your considerations:
Identify whether any requirements in your dress code may
disadvantage a particular group of people.
If so, what aim is that requirement trying to achieve?
What evidence do you have to show that the requirement achieves
that aim?
Is that requirement necessary to achieve that aim or can it be
achieved in another way?
Erica Humphrey (pictured) is a solicitor with the Employment team at
IBB Solicitors.
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In this issue: January 2013
Client:
Byfield
Consultancy
Source:
Human
Resources
Magazine UK
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Date: 04­Feb­2013
Reach: 1943
Value: 49