The Equality Act 2010 prohibits direct and indirect discrimination. Direct discrimination is the less favourable treatment of a person because of a protected characteristic. Indirect discrimination is more nuanced in that it is where a ‘provision criterion or practice’ (PCP) places those with a protected characteristic at a disadvantage in comparison to others and it cannot be shown to be justified.
Where an employer puts in place dress and appearance rules, they might be at risk of claims being made for these types of discrimination. Those risks were recently considered in the joined cases of IX v WABE eV and MH Müller Handels GmbH v MJ when the European Court of Justice was asked whether rules that prevented employees from wearing visible signs of political, philosophical or religious belief could be unlawful as amounting to discrimination on the grounds of religion or belief.
Both cases had been referred from German courts and involved employees who had been suspended for wearing an Islamic headscarf.
The first involved a special needs carer who was employed in a child day care centre. The employer had made it a rule that employees should not wear any signs of their political, philosophical or religious beliefs that are visible to parents, children and third parties in the workplace. This was to maintain neutrality so that the children were not influenced by religiously or philosophically determined clothing.
The second case involved a store employee who was employed as a cashier and sales assistant. She had been told by her employer that she should not attend the workplace with ‘conspicuous, large-sized signs of any political, philosophical or religious beliefs’.
Both employees brought claims that their rights in respect of freedom of religion had been breached.
It was held that the policy applied in the child day care centres was not capable of amounting to direct discrimination. Everyone was treated the same. Prohibiting workers from wearing any visible sign of political, philosophical or religious belief in the workplace did not lead to anyone being treated less favourably.
As for indirect discrimination claims it would be possible to show the policy was justified if it was a proportionate means of achieving a legitimate aim. In that regard a genuine need to maintain neutrality; for example, due to parent pressure, may be sufficient.
In contrast it was held that a policy that prohibited only ‘conspicuous, large-sized signs’ could amount to direct discrimination as the wearing of such large signs may be inextricably linked to one or more specific religions or beliefs. It would also be likely to amount to indirect discrimination as there could be no justification based on maintaining neutrality where the prohibition did not cover all visible forms of expression of political, philosophical or religious beliefs no matter what size.
The good news for employers is that a neutral policy was considered not capable of amounting to direct discrimination.
Care will be needed as it may still give rise to indirect discrimination, but it will not be unlawful if justification can be established. That will mean showing there was a genuine need, rather than just a desire, to maintain and project neutrality in the workplace. This is likely to mean there should be some evidence that it is necessary to comply with customers’ or service users’ legitimate wishes.
However, a dress and appearance policy that is more selective in what is and what is not allowed may face greater challenges. Rather than neutrality, an employer would need to show another legitimate aim, for example, to protect health and safety. It will, however, need to be considered on a case-by-case basis assessing the needs of the employer against the discriminatory impact on the employee.
Avril England is a partner and Christopher Davies an associate at Gateley PLC