Dress codes and hairstyles – could your policy be discriminatory?

18 August 2011

In a well publicised decision relevant to all employers with dress codes, the High Court ruled in the case of SG v St Gregory’s Catholic Science College, that a blanket, unwavering, policy of not allowing a “cornrows” hairstyle on male pupils, with no exceptions, could be considered indirect race discrimination, which could be justified if the ban were a proportionate means of achieving a legitimate aim, but was not on the facts of the case. However, it was not considered sex discrimination. 

The court heard evidence that there are people of African-Caribbean decent who regard the cutting of their hair to be wrong for cultural reasons. On that basis, they need their hair to be kept in cornrows. So the African-Caribbean ethnic group could be rendered at a disproportionate disadvantage by a complete ban on cornrows. The School’s arguments that a blanket policy could be justified (they said cornrows were a strong indicator of gang membership) were rejected as disproportionate. 

However, the policy was not regarded as sex discrimination. The judge looked back to the Court of Appeal’s 1996 decision in Smith v Safeway [1996] ICR 868, where the Court of Appeal held that an employment tribunal was entitled to decide, on the facts, that an employer’s appearance code, which required male employees’ hair not to be below collar-length, was not discriminatory.  Based on that case’s guidance that rules concerning appearance that enforce common standards of smartness will not be discriminatory, the court found that although the school’s policy allowed effectively cornrows for girls, this did not amount to unlawful sex discrimination, even though boys were not allowed them. 

This case follows the principles on dress codes and personal appearance set out in Eweida v British Airways plc that hit the headlines in 2009 and 2010.  In order for a claim for indirect discrimination to succeed, a blanket provision relating to dress must negatively impact a specific group sharing the claimant’s “protected characteristic” (i.e. sex, age, disability, sexual orientation, race, age, religion or belief) before being allowed to proceed. 

In the Eweida case, the claimant argued that Christians would be disproportionately negatively impacted by British Airways’ total ban on jewellery on customer facing staff because it meant that they would not be able to wear a crucifix. Ms Eweida failed in her case because she couldn't show that it was a requirement of Christianity that adherents had to display such a public display of their faith. In the St Gregory’s case, however, the claimant successfully showed that Afro-Caribbean people could be disproportionately impacted by a blanket ban on cornrows. Furthermore, the school failed to justify their blanket ban as a proportionate means of achieving a legitimate aim – the school only allowed conservative hairstyles for boys amid concerns that other styles could encourage a “gang culture”. 

Employers should look again at their polices just to check that any dress, uniform and grooming requirements that they may have do not have a similar impact on a group sharing a protected characteristic and, if it does, that the employer can justify it as a proportionate means of achieving a legitimate aim.  For example, a ban on facial hair for food hygiene reasons could well be justifiable despite many religious groups requiring their male adherents to wear beards, but a similar ban on call-centre operators would probably not be.

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