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‘Neutral’ dress policies likely to be ‘wildly unpopular’ in UK

‘Our approach to equality is based more on diversity than neutrality’

15 March 2017

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After digesting the Court of Justice of the European Union ruling that ‘neutral’ dress policies may amount to indirect discrimination if not justified, employment experts have said the decision will have little effect on UK employers.

The court’s ruling followed two claims brought by Muslim women who were dismissed from their employment after wearing Islamic headscarves at work, contrary to their employers’ policies for staff in customer-facing roles.

The decision of the EU’s highest court led to several misleading headlines in some sections of the UK press which suggested that it was legal for employers to ban Muslim employees from wearing headscarves.

Bob Cordran, an employment lawyer and partner in the London office of international law firm Dorsey & Whitney, said the case should be treated with ‘extreme caution’ by UK businesses.

‘Employers would be very foolhardy indeed to change their dress code based on this case. Any suggestion that it allows “banning” of particular items such as the Islamic headscarf is wide of the mark.’

Cordran said a UK employer would need to have ‘very compelling’ reasons to impose a policy of complete neutrality, which was likely to be ‘wildly unpopular’ with the workforce.

‘Despite the furore on social media, employers cannot now just impose a ban on Islamic headscarves or other signs of particular religions,’ he added. ‘As so often, it is much more complicated than that, and for nearly every employer in the UK this case will not change how they operate.’

Darren Newman, an employment law trainer, writer, and consultant, raised concern over the use of the word ‘neutrality’ in the court’s reasoning.

Writing on his blog, he said: ‘Excluding anyone from a customer-facing role if they are visibly of a particular faith doesn’t seem very neutral to me. I certainly can’t see the argument working in Britain.

‘Our approach to equality is based more on diversity than neutrality and I can’t imagine a tribunal looking favourably on an employer sacking an employee who is visibly Muslim, Sikh, or for that matter visibly anything.’

Newman said he expected a UK tribunal to focus on the practical impact of the clothing in question, rather than the message it sends.

The employment lawyer also cited the case of Azmi v Kirklees Metropolitan Borough Council, where a Muslim teaching assistant was suspended because she would not remove her niqab when in class with pupils assisting a male teacher.

The local education authority had provided advice to the school on the wearing of a veil which said: ‘Obscuring the face and mouth reduces the non-verbal signals required between adult and pupil… A pupil needs to see the adult’s full face in order to receive optimum communication.’

The teaching assistant lost her appeal against an employment tribunal’s decision that her school’s ban on wearing a veil was not indirect discrimination.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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