Dress codes are a common feature of many workplaces, but recently firms have hit headlines as their idea of appropriate corporate wear clashed with people’s rights.
by Laura Morrison
Laura Morrison, an employment lawyer with Maclay Murray & Spens LLP and a member of the firm’s Food and Drink team Laura.Morrison@mms.co.uk
How can a dress code be discriminatory?
Most employers have a dress code of some sort, whether to project a professional image or for health and safety, and that is perfectly legitimate. However, the way such codes are implemented can lead to unlawful discrimination on grounds including sex, religion, disability and gender reassignment.
This discrimination can be direct – for example a woman is treated less favourably than a man – or indirect, such as applying a policy to all employees which has the effect of preventing the wearing of religious garments. But indirect discrimination can be objectively justified: for example, preventing a nurse from wearing a crucifix at work has been justified on health and safety grounds.
Are all “differences” discriminatory?
No. Taking sex discrimination as an example, having different requirements for men and women will not necessarily amount to discrimination if, taken as a whole, the policy treats neither gender less favourably. But if the requirements are more onerous on one sex or are not enforced consistently between sexes, then this may be discriminatory.
How strict should an employer be in implementing its dress code?
Some discretion can be exercised. For example, an employer may decide that requiring a smart appearance means male staff cannot have long hair, but female staff can. Indeed, a dress code which simply requires staff to dress smartly might allow for differences between male and female staff.However, an employer’s discretion has limits and must be exercised in an even-handed way. It certainly won’t be appropriate to specify that a female member of staff should wear a skirt, a lower cut top or more make-up.
What might happen if my dress code is discriminatory?
The most obvious result of a discriminatory dress code is an employee successfully making a discrimination claim. A teenage waitress, who was successful in a sex discrimination claim following her employer’s insistence that she wear a skirt and make-up to make her “easy on the eye”, was reportedly awarded over £3,500, and that will have been in addition to legal fees, which may have been higher still.
As well as financial impact, the accusation of discrimination can substantially damage a business’s reputation. The recent story of a secretary sent home for not wearing high heels was covered by news outlets across the UK and triggered a national debate on the subject, although of course this won’t happen in every instance!
How do I avoid discriminating?
Think carefully about what you require from your dress code, and be open to reasonable requests for changes. The code shouldn’t go beyond what is reasonably required to achieve your objective, and you should be flexible in its application, to an extent, in order to avoid disadvantaging employees due to their sex, religion or disability. ACAS and the Equality and Human Rights Commission both provide useful guidance on dress code good practice.
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