It is not a legal requirement for employers to have a dress code but many do. Employees do not have a right to dress a particular way, or to wear jewellery to work. Generally speaking, employers can insist that employees dress in a particular style, and they can ban the wearing of particular clothes or jewellery.
However, in some circumstances an outright ban can be direct or indirect discrimination.
Any dress code or uniform policy must not discriminate on the basis of any of the nine protected characteristics contained in the Equality Act 2010.
These are:
- age
- gender reassignment
- being married or in a civil partnership
- being pregnant or on maternity leave
- disability
- race including colour, nationality, ethnic or national origin
- religion or belief
- sex
- sexual orientation
Restricting or banning jewellery can impact employees wearing jewellery that is an important part of one of these characteristics. An example would be wanting to wear a cross on a chain to work as a manifestation of the employee’s religious beliefs.
Reasons for restricting jewellery
Employers have various duties under the Health and Safety at Work Act 1974 to their employees. These include taking steps to prevent employees from getting hurt or ill through their work. Employers must carry out risk assessments to decide what could harm their staff on the job, and then they put in place precautions to prevent the harm. So far as jewellery is concerned, this will typically include a range of policies on what can be worn, and whether it should be covered.
Employers in a health/medical or food preparation environment may also consider the safety of patients or customers. They may restrict or ban jewellery to prevent infection, injury or on hygiene grounds.
Restricting or banning the wearing jewellery for genuine health and safety or hygiene concerns is likely to be acceptable. Many employers specify that only minimal jewellery can be worn, such as a simple pair of stud earrings. Such a situation might arise, for example, if the employee is working around machinery and there is a possibility that necklaces or earrings could become entangled.
Any restriction must not be targeted at religious jewellery alone. It would need to be targeted at all jewellery that posed such a health and safety or hygiene risk.
Similarly, rules must not be more demanding on a particular gender. In Jarman v The Link Stores Ltd (ET Case No 250509/03) (https://app.croneri.co.uk/topics/appearance-and-dress-codes/indepth), a male employee who was asked to remove his earring at work, successfully argued that this amounted to discrimination since women were permitted to wear earrings at the same workplace. Employers should ensure policies are phrased so that they are neutral without gender stereotypes.
In all cases, rules must always reflect the needs of the business, not bias or personal preferences.
Indirect discrimination
A blanket ban on all jewellery could lead to indirect discrimination if there is no objectively justifiable reason for the ban. For example, if the employer decides to ban all jewellery because it does not reflect the brand they want to portray, a Sikh man or woman wearing a Kara or Kada bracelet as a symbol of their faith may have a valid complaint that the rule is indirectly discriminate. Such a bracelet is typically simple and unadorned; and it would be difficult to argue that wearing such a piece was so detrimental to the employer’s brand that this outweighed having respect the employee’s religious beliefs.
Ultimately any ban must be a proportionate means of achieving a legitimate aim, and a blanket ban is unlikely to meet this criteria (see Ms Eweida’s case below). The employer should consider including a clause in their policy that if an employee wishes to wear jewellery for religious or cultural reasons, this can be discussed with their manager and consent to wear such jewellery will not be unreasonably refused. They should consider making an exception if there is no genuine important reason for the ban (such as health and safety).
Employers also need to carefully consider whether there are any other ways the employer could manage their concerns (health and safety requirements, hygiene etc), without banning the wearing of such jewellery altogether.
Case law
The case of Eweida v British Airways [2013] ECHR 37 is often quoted when discussing this topic.
Ms Eweida worked for British Airways as a member of their check-in staff and wanted to wear a simple silver cross as an expression of her Christian faith. However, British Airways’ policy was that any such jewellery should be worn out of sight, under clothing. Ms Eweida wore the cross visibly while working and BA placed her on unpaid leave as a result.
She claimed indirect discrimination, initially at an Employment Tribunal. Her case was rejected and she appealed, first at an Employment Appeal Tribunal, then at the Court of Appeal. Each attempt failed and Ms Eweida took her case to the European Court of Human Rights. This time she was successful. The Court found that British Airways had not reached a fair balance between Ms Eweida’s religious beliefs and the company’s desire to have a particular corporate image.
“The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.”
Whilst in Ms Eweida’s case the court upheld her claim, claimant Shirley Chaplin was not so successful. She was also a practising Christian who sought to wear a crucifix visibly, and said she could not do so without ‘violating her faith’.
Ms Chaplin’s employer, the Royal Devon and Exeter NHS Foundation Trust, had a uniform policy which stated that jewellery could be worn if discreet. Its policy included a list of items that were acceptable, such as a ‘plain smooth ring which will not hinder hand hygiene’. The policy specifically banned necklaces ‘to reduce the risk of injury when handling patients’. It invited employees who wanted to wear particular types of clothes or jewellery for religious or cultural reasons to raise the issue with their line manager ‘who will not unreasonably withhold approval’.
Following the introduction of new V-neck tunics in 2007, Ms Chaplin’s employer requested that she remove her necklace. Ms Chaplin sought permission to wear it on religious grounds but this was refused because the chain and crucifix ‘might cause injury if an elderly patient pulled on it’. The hospital management did suggest the applicant might alternatively wear a turtle necked T‑shirt under her uniform and over the cross and chain, but the applicant insisted that the visible wearing of the crucifix was an essential part of her religious faith.
In this case the judges held that the Trust had an objective justification on the grounds that it was protecting the health and safety of staff and patients, and this was a proportionate means of achieving a legitimate aim.
In conclusion:
Employers can implement a dress code which includes restricting or banning jewellery, but careful thought must be given to the restriction of jewellery worn as a result of a protected characteristic. Is the restriction to meet a legitimate aim, and does it achieve a fair balance with the employee’s beliefs?
Government guidance states:
“Employers should be flexible and not set dress codes which prohibit religious symbols that do not interfere with an employee’s work.”
Note that Downing Street confirmed Boris Johnson is considering withdrawal from the European Convention on Human Rights, saying “all options are on the table” in the wake of the last minute cancellation of a deportation flight to Rwanda. We may therefore see changes to this area of law in the future.
Jen is a practising Solicitor / Chartered Legal Executive and Commissioner for Oaths, admitted as a Fellow in 2006 and now SRA-regulated freelance. She started working in law in 2000 and her legal experience includes both private practice and in-house. She was Highly Commended by CILEX at the 2018 CILEX National Awards 2018 for Private Client expertise and she has authored work for the CILEX journal, LexisNexis and the Parliamentary Review amongst others.