Dress codes have been back in the spotlight in the UK recently, following a British Airways decision not to allow one of its check-in staff to wear a crucifix necklace under her uniform.
Under BA’s uniform policy, staff can only wear items of jewellery if they are concealed under their uniform. Its policy hit the headlines when Nadia Eweida claimed that she was forced to take unpaid leave after she refused to conceal her crucifix necklace. She did not see why she had to hide it when BA’s policy makes exceptions for the apparel of other religions, such as turbans and hijabs.
Ms Eweida claims that BA’s policy amounts to unlawful discrimination under the Employment Equality (Religion or Belief) Regulations 2003. In order to succeed in an indirect discrimination claim, Ms Eweida would have to show that BA imposed a provision, criterion or practice which put her at a particular disadvantage, and which could not be justified. On the face of it, she may struggle with this first element of the test because BA has not said that she cannot wear a cross, simply that she cannot wear it on top of her uniform.
It is not immediately obvious why this should put Ms Eweida at a particular disadvantage when compared either with members of other religions who want to wear a necklace bearing a non-Christian religious symbol, or people without religious beliefs who just want to wear a necklace. Her desire not to hide her crucifix because (in her view) “Jesus has to be glorified” is not the same as saying that she cannot comply with the dress code requirement. Most Christians feel under no compulsion to glorify Jesus publicly. It is understood, moreover, that she has been offered a role in a back-room capacity away from the public eye where she would be free to wear the necklace outside her uniform, but that she has declined this.
Assuming Ms Eweida could get over the first hurdle, BA would still be able to justify its jewellery-under-uniform policy if it could show that it was a “proportionate means of achieving a legitimate aim”. In order to be a legitimate aim it would have to correspond with a “real need” on the part of BA. From the press reports the aim of that policy is not clear. BA does not appear yet to be advancing publicly any health and safety reasons as to why employees cannot wear jewellery over their uniform (though such arguments must exist).
It may be partly the case, however, that BA simply does not want its customer-facing staff wearing anything but its uniform for corporate branding reasons. Is this a legitimate aim for a global organisation ? Clearly yes. In addition, its stance that employees can freely wear religious symbols or items of secular jewellery under their uniforms would help to show also that it is proportionate. The fact that turbans worn by BA staff must themselves comply with rules on colouring to maintain the corporate brand suggests the same. It has to be borne in mind, however, that the crucifix in question is only about the size of a 5p coin, so how distracting from the corporate image could that really be ?
Ms Eweida is not the only employee challenging an employer’s dress code policy recently. Mrs Azmi, a Muslim, brought a complaint of religious discrimination after Headfield Church of England Junior School refused to allow her to wear a veil covering her face while teaching English. It said that the veil interfered with the children’s ability to learn. She brought complaints of direct and indirect discrimination, victimisation and harassment.
The main issue before the Tribunal on the indirect discrimination claim was whether the School was justified in refusing to allow Mrs Azmi to cover her face during lessons. The Tribunal was satisfied that the School’s stance was a proportionate means of achieving its legitimate aim of ensuring that the children received the best possible instruction and assistance in the English language. Its decision is however very much confined to the facts of this particular case. It does not mean that employers now have carte blanche to ban veils in the workplace. It will be a balancing exercise - balancing the needs of the business against the potentially discriminatory effects of a ban.
In short, employers should be reassured that none of the cases that have hit the headlines recently have changed the law with regard to dress codes. It is still the case that an employer can set its own dress code policy, provided it does not contravene the discrimination legislation. It is also worth bearing in mind that despite the current media circus, there have actually been very few claims under the Religion or Belief Regulations since they came into force on 2 December 2003. According to the latest Tribunal Service Annual Report there were only 486 such claims in 2005-2006, compared to over 14,000 sex discrimination claims during the same period.
This article was written by David Whincup, a partner in law firm Hammonds.