HR 14 March 2017

What should employers consider before implementing a neutral dress policy?

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Neutral dress policies must be that of employers, not customers

Here, employment law director at Peninsula, Alan Price, outlines what employees should keep in mind when enforcing a so-called neutral dress policy.

The European Court of Justice (ECJ) has decided that it is not an act of religious discrimination for an employer to ban an employee from wearing a headscarf at work, provided that the employer has a neutral dress policy in place.

The case in question centred around a Belgian Muslim employee who informed her employer that she was going to start wearing an Islamic headscarf at work.

The employer, G4S Secure Solutions, told her that wearing a headscarf would contravene its rules on neutrality when in the company of customers and subsequently amended its dress code to the effect that employees were not permitted to wear any visible symbols connected to political, philosophical or religious beliefs. The employee claimed this was religious discrimination.

Upon analysis, the ECJ has decided that an employer is allowed to have a policy which instils a neutral dress policy on its employees, in effect banning Islamic headscarves at work. However, the court indicated that such a policy could still be discriminatory if not drafted and implemented with caution.

Employers with a dress code aimed at ensuring neutrality must, therefore, be sure that the policy applies to all employees within an organisation, and avoid singling out people of a particular religion for different treatment.

If the effect of a policy was to treat some employees differently from others based on their religion, this is likely to make a dress code based on neutrality a discriminatory one.

The reason behind a blanket ban on political, philosophical or religious manifestations through dress is also a key element when deciding whether the policy is indirectly discriminatory.

In this case, the aim of the employer to project an image of neutrality when in the company of customers was considered to be legitimate. A desire simply to project a corporate image may, on the other hand, not be considered a legitimate aim.

The court suggested that employers may need to look at ways to accommodate employees who still wish to wear religious items of clothing at work, for example, moving them to another role which did not involve contact with customers.

The court was clear, however, in its message that the neutral dress policy must be that of the employer itself. Relying simply upon the wishes of a customer not to come into contact with employees who wore items of religious clothing as a reason for a ban would not be sufficient to defend a claim of discrimination.

Alan Price is employment law director at Peninsula  

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