Dressed to suit
A brief overview of clothing and appearance
Whatever code they introduce, employers need to be consistent in their approach and have a good reason for imposing it – perhaps because their employee has contact with the public. Or for health and safety reasons.
In this article, Deborah Henning, a solicitor from Thompsons Employment Rights Unit in Newcastle, provides an overview of the law governing dress codes at work.
Is it a contractual requirement?
There is nothing to stop an employer from including an express clause in the contract spelling out the dress code that employees have to observe. Some may do so for health and safety reasons.
However, even if there is no explicit reference to clothing in the contract, employees are still under an implied duty to obey their employer's reasonable and lawful instructions regarding expected standards. And that includes their clothing and appearance.
Employers should make sure that employees are aware of the contractual clause and that they know that a failure to comply with any written policy will be treated as a disciplinary matter.
How should employers deal with someone they think is inappropriately dressed?
Employers should discuss their concerns privately with the employee, and allow them to give their side of the story. If the employer is not convinced by the explanation, they should give the employee time to comply with the code before considering disciplinary action.
Is dismissal an option?
Yes, an employer can dismiss someone fairly for refusing to comply with their reasonable instructions, if they have no good reason for not doing so, and they have been given prior warnings and adequate time to comply.
For instance, a reporter was sacked by his employer, having been warned on three occasions about his offensive BO and scruffy appearance. The employer won the case on the basis that the reporter came into contact with the public and acted as an ambassador for the company.
On the other hand, an electrician who was dismissed for refusing to have his hair cut was held to have been unfairly dismissed because the tribunal said his appearance was not detrimental to the employer’s business, nor to the way he did his work.
Is imposing a code sex discrimination?
The answer is that It depends. In the case of Schmidt -v- Austicks Bookshops Ltd, the company imposed a rule that female members of staff who came into contact with the public were not allowed to wear trousers. Miss Schmidt refused to comply and was dismissed.
The EAT said she had not been discriminated against because the company had also imposed different but equivalent restrictions on male members of staff.
Employers can, therefore, treat men and women differently, as long as they don’t treat one or other of the sexes less favourably.
Take the case of Smith -v- Safeway. Mr Smith claimed he had been discriminated against on the ground of sex when he was dismissed for refusing to cut his hair. The Safeway dress code required both men and women to wear hats, but women were allowed to keep their hair long if they tied it back. Men were not allowed to have it below shoulder length.
The Court of Appeal said that Mr Smith had not been treated less favourably, simply because Safeway had applied the same conventional standards to both sexes. That was not, in itself, discriminatory.
This point came to a head again in Department for Work and Pensions -v- Thompson, in which the EAT said that requiring men to wear a collar and tie to work did not necessarily amount to sex discrimination. It said that Mr Thompson (who was represented by Thompsons) had to show that he had been treated less favourably, not just that he had been treated differently.
In this case, Mr Thompson’s employer decided to introduce a new dress code that required men to wear a collar and tie; and women to wear something to a similar standard.
The Employment Appeals Tribunal said that the deciding factor was whether “an equivalent level of smartness to that required of the female members of staff could only be achieved in the case of men, by requiring them to wear a collar and tie”. If it could be achieved in some other way, then imposing such a rigid code might suggest less favourable treatment towards male staff.
Is it religious discrimination?
Employees can also rely on the Religion and Belief Regulations 2003, although they do not stipulate anything specifically about dress codes. It stands to reason, however, that a code that impacts less favourably on a particular religious group is likely to amount to indirect discrimination, requiring the employer to justify it.
So for example a dress code requiring all women to wear dresses or skirts might impact unfavourably on Muslim women who wanted to wear trousers (and might, depending on whether it amounted to less favourable treatment, also constitute sex discrimination).
The issue of wearing a full face veil has, however, turned out to be rather different as the recent (so far unsuccessful) case of Aishah Azmi, has demonstrated. The teaching assistant claimed that she had been discriminated against when asked to remove her veil in front of men, but failed to prove her case.
Yet to be decided is the case of a Christian woman (Nadia Eweida) who recently lodged a claim against BA for refusing to allow her to wear a crucifix.
The airline said that it breached uniform rules stating that staff must not wear visible jewellery or other “adornments” while on duty. The company allows religious items such as turbans, hijabs and bangles to be worn as staff cannot physically conceal them beneath their uniforms. Ms Eweida says that amounts to religious discrimination.
Can employees rely on the Human Rights Act 1998?
Employees may also try to bring claims under the Human Rights Act. Article 10 – which gives the right to freedom of expression – may include the right of an individual to express themselves by means of the way they dress.
Employers may be able to argue that they have to protect their reputation, including that of the business itself, but they would have to be able to justify any restrictions they impose.
Can employers rely on health and safety reasons?
When it comes to health and safety requirements, employers can usually provide a reasonable justification for imposing certain dress requirements, such as hard hats on a building site or at a factory.
But note that the Race Relations Act 1976 and the Religion and Belief Regulations 2003 exempt turban-wearing Sikhs on a construction site from having to wear a safety helmet.
What about trans gender employees?
If an employee has embarked on a course of action that will lead to gender reassignment surgery, it would be unlawful to prevent them dressing according to their new gender.
Do different rules apply at the Christmas party?
Although most rules are relaxed at the Christmas party, employees should not assume this automatically applies to their employer’s dress code. This is particularly the case if the event is being held in a public place. The employer is still likely to want to project a positive image of their organization in public, and is unlikely to appreciate seeing their employees in a state of undress, whatever the time of year.
So caution is the by word. If in doubt, employees should stick to the dress code that is normally acceptable at social events connected with their workplace.