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Religion and the Dress Code

Nadia Eweida, Shirley Chaplin, Gary McFarlane and Lillian Ladele are four names that you might have become accustomed to hearing if you’ve been keeping up to speed with employment law events in the debate over religious belief in the workplace over the last few months.

The four Christians had brought cases against the UK government for not protecting their rights. They argued that their employers’ actions went against articles 9 and 14 of the European Convention on Human Rights, which protected their rights to “freedom of thought, conscience and religion” and prohibit religious discrimination.

This week the European Court of Human Rights gave its decision on their claims. The ruling confirmed that even though both Mrs Eweida and Mrs Chaplin’s cases relate to the wearing of visible crosses at work, only Mrs Eweida’s claim was successful. The Court of Appeal had held that a uniform policy that prevented the wearing of visible items of jewellery around the neck (the subject of Mrs Eweida’s case) did not give rise to indirect discrimination against a Christian employee who was sent home for displaying a cross on a necklace.

The distinction between Mrs Eweida and Mrs Chaplin’s arguments is that employers should be able to refuse permission to wear a cross on health and safety grounds. Ms Chaplin worked for the Royal Devon and Exeter NHS Trust Hospital as a clinical nurse. She was moved to a desk job after she refused to remove her crucifix necklace at work. Her employer argued that the decision to move her was for a health and safety reason i.e. concerns about patients trying to grab necklaces. The ECJ confirmed that this decision was necessary in order to protect the health and safety of nurses and patients.

Mr McFarlane was dismissed from his job after indicating on a training course that he might have an objection to providing sex therapy to same-sex couples on account of his Christian faith. The court found that this did not amount to religious discrimination. Similarly, neither did Ms Ladele’s claim, who was disciplined after refusing to carry out same-sex civil partnership ceremonies.

The three unsuccessful applicants plan to ask for their cases to go to appeal at the Grand Chamber of the ECHR, but only time will tell whether or not this will make a difference in verdict.

If you have a dress code, you need to be able to objectively justify requirements that have the effect of prohibiting religious items like visible crosses and hijabs. This could be difficult to justify - especially if the rule is based on a view that certain items do not fit a particular ‘corporate image’. In some lines of work this could be justified (i.e. Azmi v Kirklees Metropolitan Borough Council which featured a bilingual classroom assistant who wanted to wear a full face veil),but in most it won’t be.

If there is a risk to health and safety as in the Chaplin case, banning particular accessories or items of clothing may be justifiable. For example, if your employees operate machinery, then banning them from wearing jewellery (to avoid it getting snagged into a vicious machine) might be perfectly reasonable.

The ECJ’s judgment suggests that the manifestation of an individually held belief, if genuinely held and closely linked to the religion or belief, is capable of protection. The manifestation of that belief must be weighed against the legitimate aims of the employer.

Claims under the Human Rights Act cannot be brought directly against a private employer, but employment tribunals are obliged to interpret UK law in line with the Convention. This means, a private sector employee bringing a claim for discrimination may now seek to argue that the law requires to be interpreted in light of the judgment in this case.

If you do have a strict uniform policy, weigh up its reasonableness taking these points into account. This judgement highlights the fact that indirect discrimination, whether on the grounds of religion or not, will continue to be a highly fact specific exercise, but employers will be required on many cases to accommodate reasonable requests in respect of uniform, so be ready to do so!

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