Introducing a Dress Code - How Do I Handle It?

We are looking at introducing guidelines around what our employees should wear in the workplace. What issues should we look out for? For example, should we have a position on such things as the wearing of religious or political dress/symbols; or equal dress codes for men and women; or in fact whether making mention of a dress code for men and women is considered discriminatory for those who do not identify as such. How do I handle it?

One of the interesting consequences of remote working during the Covid-19 pandemic has been the changes in professional dress for work. While dress codes have been gradually relaxing for some time, forced working from home over the last 18 months has accelerated this further. A flexible and common sense approach of dress codes only applying during virtual meetings and interactions with clients and customer, seems to be the prevailing approach most companies are taking while employees are working from home. 

Whether a dress code policy expressly addresses remote working or not, the principles are the same: the dress code must not be discriminatory, and any infringement of such protected rights must be objectively justified.

Employers must tread cautiously to avoid unlawful discrimination in any dress code policy. Consideration should always be given for the reasoning behind the policy. Employers are entitled to require certain standards of dress and appearance, either to meet with their corporate image or to ensure hygiene and safety standards or potentially others reason. However, due care must be taken to ensure that a company dress code does not contravene the provisions of the Employment Equality Acts, 1998-2015 (“the Acts”).

The Acts prohibit direct and indirect discrimination on the grounds of gender, civil status, family status, race, religion, age, disability, sexual orientation, and membership of the travelling community.

Direct discrimination occurs when a person is treated less favourably than another person is, has been or would be treated because they fall within one of the above nine categories.  Indirect discrimination occurs where the same rule is applied to all employees, but members of one of the nine groups covered by the Acts are put at a disadvantage as a result of the rule.

The above query raises a number of considerations in relation to religious and gender discrimination which will be considered below.

Religious/Political Discrimination 

Political views or beliefs are not one of the nine grounds protected under the Acts, however it is common for a political symbol or slogan to be associated with one of the other grounds such as religion, sexual orientation or gender, so an employer should be wary about banning political symbols or slogans outright.  

In terms of religious discrimination, there have not been many Irish cases in relation to dress codes, so it is useful to look at a number of UK and EU cases.

In the UK case of Eweida v British Airways, a devoutly Christian employee was sent home for refusing to remove a silver cross on a necklace – in contravention of a uniform policy which prohibited the wearing of any visible jewellery around the neck. Although unsuccessful domestically with her claim of indirect discrimination on the grounds of religion, Ms Eweida took her case to the European Court of Human Rights and won. The ECHR found that Ms Eweida’s desire to wear a cross visibly was a manifestation of her religious belief.

Another setting where the issues of religious discrimination and dress codes have arisen is in schools. In the ECHR case of Dogru v France (27058/05), an eleven year old Muslim girl refused to remove her head scarf during physical education classes and was expelled as a result with the school citing the French Government’s ban on head scarves. The ECHR unanimously found that France did not violate the applicants' rights to religious freedom and education guaranteed by the Convention on Human Rights, noting that Article 9 of the Convention "does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in a manner governed by a religious belief."

Although in that case (within a school setting) the European Convention on Human Rights was held not to have been infringed, operating such a policy in the workplace without a sound objective justification would leave an employer open to claims under the Acts.

The test as to whether a measure is objectively justified is a three tier test:- Is it for the purpose of achieving a legitimate aim? Is the measure appropriate and is it necessary for that purpose?

In another UK case, a Muslim teacher lost her unfair dismissal claim, as the school where she worked provided objective justification for the demand to remove her head scarf, namely the complaints made by pupils that they found it difficult to hear her. 

More recently, the European Court of Justice handed down a judgment that may have important consequences on dress codes. In the cases of IX v. WABE eV and MH Müller Handels GmbH v. MJ [2021]. Here, the Court considered whether a dress code prohibiting workers from wearing any visible signs of political, philosophical or religious belief in the workplace was discriminatory. The Court found that such a policy would not constitute direct discrimination, and while it could amount to indirect discrimination, an employer may be able to justify the policy, provided that there is a genuine business need for it.

It is clear from the above case law that a company can take a position on the wearing of religious or political dress/symbols but where it infringes on someone’s religious belief this must be proportionate and objectively justified. Sensitivity should be applied, and consideration given as to why exactly the prohibition of the dress/symbol are deemed by an employer to be objectively justified within their workplace. 

Gender/Gender Identity Discrimination

The second part of this query asks whether there must be an equal dress code for men and women and whether mentioning men or women could amount to discriminatory for those who do not identify as either.

The caselaw in this area is clear: a dress code cannot unreasonably bear more heavily on one gender then the other. If a particular stipulation is required that might impact one group more than another; then there must be a clear objective justification for the direction and it must be applied consistently. 

This was determined by this Court in the case of O'Byrne v Dunnes Stores [2004] 15 ELR 96. Mr O’Byrne’s case involved a constructive dismissal arising out of a refusal by him to wear a face mask or to shave his “neat and closely trimmed” beard. No argument was put forward by the employer in relation to hygiene or safety issues and it was noted that female workers were not required to cover their hair at work. Therefore, although it was accepted that dress codes, by their nature, apply different rules to men and women; they must not unreasonably bear more heavily on one gender than on the other.

In the case of Group 4 Securicor v Mark Savage (EDA079 25/06/2007) the Labour Court ruled that operating dress code policies in a way which restricted the freedom of men to determine their own appearance to a significantly greater degree than it does in the case of women, constituted unfavourable treatment on grounds of gender. Thiscase concerned comments made by a Company employee during a job interview with Mr Savage. Mr Savage had a pony-tail and it was held that the company was vicariously liable for the comment made by the interviewer to the effect that “its short back and sides here”, even though that was not an accurate reflection of the companies policy (they did in fact employ some men with ponytails).

It has been clarified that the gender ground under the Acts does encompasses trans or transitioning employees. This was considered in the 2011 Equality Tribunal decision in Hannon v First Direct Logistics Ltd [DEC S2011-066]in which the claimant claimed that she had been constructively dismissed when she revealed her gender identity and began transitioning. The Tribunal found in favour of the claimant thus helpfully clarifying that the gender ground encompasses transgender under the Employment Equality Acts in Ireland.

Avoiding gender stereotypes and ensuring any dress code policy is gender inclusive, where possible, will reduce the risk of a claim of discrimination. As with religious discrimination, any infringement must be proportionate and objectively justified.

Advice for Employers

Taking all of the principles discussed above into account an employer should consider the following in relation to dress codes:-

• Does the dress code adequately reflect the image and clientele of the company?
• Is the rationale behind the dress code reasonable, proportionate and can be objectively justified?
• Does the dress code take account of religious rules on dress? Are they proportionate and objectively justified?
• Are hygiene rules being applied consistently?
• Does the dress code unreasonably bear more heavily on one gender then the other?
• If there are differences in the way people are treated, can they be objectively justified on non-discriminatory grounds?
• When introducing a policy, it is best practice to engage with employees in a collaborative consultation process before any such policy is introduced. Not only will this allow an employer to gauge potentially sensitive issues with the employee base, but it will also foster a higher level of cooperation and understanding when the policy is introduced or updated.
• Is a flexible approach possible for employees working from home whereby the dress codes only applying during meetings meetings and interactions with clients and customer?