Following the easing of national lockdown restrictions, employers will be encouraging employees to return to the office after an extended period of working from home (‘WFH’). For employees this will mean a return to the wearing of professional work attire and adhering to their employers’ dress code policies.

Whilst dress code policies are implemented by the majority of employers to ensure a professional image is maintained in the workplace and, in certain circumstances, to comply with health and safety obligations, they can be controversial. Employers must ensure they are suitably and appropriately drafted to prevent discrimination claims. For instance, for religious or political reasons, many employees want or feel obliged to wear certain items, such as turbans, hijabs, crosses or bangles, however dress code policies often prohibit the wearing of such political or religious items. Whilst this is generally to encourage a more inclusive work environment, in practice this could lead to aggrieved employees raising claims on the grounds of religious or political discrimination.

There are two different forms of discrimination in Northern Ireland:

• Direct discrimination which occurs when an individual is treated less favourably than someone else due to their gender, sexual orientation, age, disability, race, religion or political belief. Direct discrimination cannot be justified in any circumstances; and
• Indirect discrimination which is when there is a provision, criteria or practice (PCP) in place which applies to everyone in the same way, but it has a worse effect on some people than others due to their gender, sexual orientation, age, disability, race, religion or political belief. Acts of indirect discrimination may be objectively justifiable which is a defence for applying a policy, rule or practice that would otherwise be unlawful indirect

Employers should therefore consider whether their dress code may be indirectly discriminatory when introducing a dress code policy and if so whether it can be objectively justified.

This issue was recently addressed by the Court of Justice of the European Union (CJEU) in the case of IX v WABE & MH Muller v M. In this case, the Employer, operated child day-care centres and had a policy in place prohibiting employees from displaying, in a manner visible to parents, children or third parties, any signs of political, philosophical or religious beliefs. The Employer enforced its policy against the Claimant who wore a headscarf for religious reasons, and also against another employee who displayed a cross. The CJEU ruled that it was not direct discrimination (for which an employer has no defence)  for an employer to impose a policy requiring neutral dress in the workplace, where the policy is applied in a general and unconditional manner. The judgment further states that whilst the employer’s policy may have caused an inconvenience to certain workers who observe religion-based clothing rules, the Claimant did not suffer less favourable treatment that was based on religion or belief as compared to other workers. Therefore the Employer’s policy did not constitute as an act of direct discrimination.

The CJEU also indicated that such policies could be objectively justified in the context of indirect discrimination if it could be proved that the policy meets the genuine need of the employer.  However, Employers must ensure that such policies are general in prohibiting employees from wearing anything which manifests a religious or political belief and should not prohibit any specific manifestations of a religion or belief, as this would likely constitute direct discrimination.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.