An employee wears a necklace with a crucifix attached, while another employee wears some neck beads. The employee is allowed to keep the beads. Can the other employee make a discrimination claim if not allowed to keep the crucifix on while at work?
The Employment Equality (Religion or Belief) Regulations 2003 provide that it will amount to direct discrimination if an employee is treated less favourably on grounds of their religious beliefs.
An employer can also be accused of indirect discrimination where a provision, criterion or practice is applied that puts employees of a certain religion or belief at a particular disadvantage.
The difference between direct and indirect discrimination is that, as an employer, you will have a defence to a claim of indirect discrimination if you are able to show the treatment was justified as a proportionate means of achieving a legitimate aim.
Another relevant law is the Human Rights Act of 1998. This incorporates the European Convention on Human Rights into English law, and Article 9 of the convention provides that everyone has the right to manifest their religious beliefs.
A dress and appearance policy is a useful means by which you can regulate not only how your employees are expected to dress for work, but also to stipulate any restrictions regarding jewellery or other appearance issues. However, it is recommended that when establishing a specific dress code you consider the dress or appearance requirements of some religions.
The ACAS Guide to Religion or Belief and the Workplace gives details regarding a number of the most popular religions practised by people working in the UK. Where work requirements on the wearing (or not) of specific items conflict with the religious requirements of the employee, there is a danger that this will amount to indirect religious discrimination.
In order to guard against this, it is important to assess whether the work requirements are justified. For example, a rule that a kitchen worker must cover or tie up their hair might discriminate against some religions that require particular headwear. However, it is likely to be a justified requirement on the grounds of health and safety. Similarly, a kitchen worker preparing food might not be allowed to wear hand jewellery.
If your employee is in a public-facing role, such as a receptionist, then the work requirements might be justified on the grounds that they are necessary to promote a certain public image for your company. The requirement not to wear a veil would be discriminatory, but the requirement could be justified where the focus of the job was to greet or assist members of the public and it was considered that communication would be impaired by the veil.
You will need to consider carefully whether the duties of your employee would justify the decision not to allow a necklace with a crucifix. In the absence of any health and safety issue or public image issue, the requirement would be discriminatory.
- Is there an existing dress policy that stipulates suitable work clothing?
- If so, is it up to date?
- Assess the duties of each role.
- Check the ACAS guide.
- Create or update policy by stipulating suitable work clothing.
- Make sure you clearly set out any other appearance rules, such as whether jewellery or tattoos are acceptable.
- Ensure you have checked for any potential conflict with religions.
- Clearly communicate the policy to employees, and ensure that you have a defined process to answer any queries.
Disputes arising from dress and appearance requirements can lead to disruption in the workplace, loss of business, higher staff turnover, legal costs and compensation awards.
Unless you have a clear and justifiable dress policy, an employee may resign and bring a claim for unfair constructive dismissal and unlawful discrimination. Remember that the cap on unfair dismissal compensation is currently £58,400.
- Guy Guinan, Partner, London employment team Halliwells 0870 365 8512 firstname.lastname@example.org
- ACAS helpline, 0845 747 4747