Many employers operate a dress code policy. However, what the employer might consider to be a reasonable requirement, a worker might see as discriminatory or even an infringement of human rights.
Why have a dress code policy?
A dress code policy makes clear the employer’s expectations and rules in respect of dress in work. You may need a policy to meet health and safety requirements or to ensure customer-facing workers are easily identifiable and presentable.
What matters should the policy include?
The policy should set out the rules, such as whether staff must wear a uniform, protective clothing, comply with a formal dress code or if they may dress casually. Further detail can be given in respect of standards for clothing and hair and for jewellery, including piercings. The policy should set out the consequences of non-compliance as well as recognise that religious requirements may need to be taken into account.
What are the consequences of getting the policy wrong?
Dress codes have attracted media attention over the years. Along with coverage of court cases, an employer was recently in the spotlight when a worker set up an online petition after being sent home for refusing to wear high heels at work.
Aside from adverse publicity, getting it wrong may put you at risk of claims for discrimination on the grounds of sex, race or religion as well as an infringement of the right to manifest religious beliefs.
When is a policy discriminatory or not?
Although a policy may apply equally to all workers and appear ‘neutral’, the policy may have a disproportionate and adverse effect on a particular group. This could give rise to indirect discrimination, unless you can justify the policy to the satisfaction of the employment tribunal.
The area is complicated, with conflicting decisions from the employment tribunal and the European Court of Justice.
For example, in two recent cases brought before the European court, an employer who had applied a blanket ban on any religious dress in the workplace was found to have discriminated against a Muslim woman by refusing to let her wear a headscarf when visiting clients, whereas another employer was found not to have discriminated against a Muslim woman by enforcing a policy of retaining religious neutrality which prevented her from wearing a headscarf in her job as a receptionist.
In the employment tribunal, it was held acceptable for a school to require a teaching assistant to remove her veil from her face when working with children because the school believed that wearing a veil could impede effective communication with the children. It was also held to be acceptable, in another case, for an interviewer to discuss with a Muslim interviewee whether her long religious dress might be a trip hazard.
Another well publicised matter from December 2015 involved Nicola Thorp, who attended her first day of work as a temporary receptionist wearing smart flat shoes. She was informed that her employer required women to wear heels between two and four inches high and was told to either go out and buy high heels or go home. She challenged the policy and was sent her home without pay.
It is worth remembering that under the Equality Act 2010: Sex is a protected characteristic. Under Direct Discrimination, whereby a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others – it could be argued that Nicola Thorp was subjected to prohibited conduct. Similar conclusion could be drawn for Indirect Discrimination, which is the application by A to B of a provision, criterion or practice which is discriminatory in relation to B’s sex.
Difficulties arise with the aforementioned principles to individual cases, where discriminatory dress codes remain commonplace in some sectors of the economy. Consider the hypothetical example of an employer who requires women to wear make-up but had no corresponding provision for men. Would it be possible for a woman to establish “less favourable treatment”, when many women wear make-up as a matter of course?
Quite simply dress codes should not be stricter or enforced more strictly against one gender than the other. However, it is acceptable for an employer to have different requirements for the permissible length of hair for men and women where this reflects convention.
If you would like to introduce or enforce a dress code policy, it makes sense to check with your solicitor before taking action.
To find out how we can help, please contact us on 01732 770660, [email protected] Warners Solicitors has offices in Sevenoaks and Tonbridge, Kent.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.