· 2 min read · Features

How image and dress codes could lead to a discrimination case

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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 The media stories suggested that he was alleging Channel 4's decision to sack him was partly related to his 'out of date' presenting style that made him unsuitable for the 'revamped' image of Channel 4's team going forward.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.

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.