Yes, they can. If you decide you want to implement a dress code or uniform policy, you must ensure that this does not directly or indirectly discriminate against employees with a particular religion or belief or no religion or belief. See our guide to the law to find out more about direct and indirect discrimination.
Any requests to change a workplace dress code or uniform policy must be considered separately as there may be clothing requirements that relate to some roles and not others. For example, wearing a religious symbol on a chain may be more of a health and safety risk when the employee’s role involves working with machinery with which it could become entangled than where their role is office based. For other roles there may be security justifications for not allowing an employee to wear clothing which makes it hard to verify their identity.
If you agree to a change in uniform policy on religious grounds for one person, you do not have to do it for everyone. It is not unlawful direct discrimination to treat people differently if their situations are different. For example, an employer agrees to a change in a uniform policy for a religious employee because otherwise they would be indirectly discriminating against that employee because of their religion. Another employee asks for the same change to the policy because they find the uniform uncomfortable. It would not be direct discrimination to refuse this request because this employee’s circumstances are not the same as the religious employee's, and the request does not relate to religion or belief or any other characteristic protected under the Equality Act 2010. The employer could also have refused the religious employee’s request if it was based on comfort alone.
No. The Court of Justice of the European Union (CJEU) confirmed that a ban which only applies to some religious symbols or dress but not others would be unlawful direct discrimination.
However, there are European Law cases which say that a ban on all religious or belief symbols or dress is not necessarily unlawful if it applies equally to all such symbols and dress. Even though it is likely to disadvantage people who share particular religions which have specific rules about dress or wearing symbols, an employer may be able to objectively justify such a ban.
Some European Court cases have suggested that demonstrating neutrality in delivering services may be a legitimate aim and that a headscarf ban can be proportionate in meeting that aim.
However, those cases were about employers in France and Belgium, countries which have a strong constitutional principle of secularism. The constitutional context in Britain is different.
In light of the European Court of Human Rights (ECHR) judgment in Eweida and others v United Kingdom, it is very unlikely that an employment tribunal in the UK would accept ‘demonstrating neutrality’ as a legitimate aim capable of justifying a policy which banned all religious symbols or dress.
Health and safety reasons can in some cases justify asking an employee to remove a particular symbol or type of dress. But you must be clear why a religious symbol or dress poses a risk to health and safety and ensure you are not discriminating against the employee.
There may be more proportionate ways of ensuring you meet health and safety requirements than insisting the employee remove a symbol or dress entirely.
For example, in a surgery environment where medical staff are required to be bare below the elbow to control infection, disposable sleeves can be used to meet health and safety requirements whilst also meeting the needs of employees who may wish to have their arms covered for religious reasons.
Last updated: 26 Jun 2018