The question of what to wear to work isn't necessarily about whether you look good in something, however important that may be. It may, at times, amount to sex discrimination. The question is when and under what circumstances?
In Department for Work and Pensions v Thompson (IDS Brief 751), a case taken by Thompsons, the Employment Appeal Tribunal (EAT) has just said that requiring men to wear a collar and tie to work does not necessarily amount to sex discrimination.
So what are the rules on dress codes?
There are no rules, as such. In some circumstances (such as health and safety or because an employee has contact with the public), it may be perfectly reasonable for an employer to tell their employees to dress in a certain way.
But employers can't just impose a code on a whim - otherwise, they leave themselves open to a claim of sex discrimination.
What happened in this case?
In April 2002 Jobcentre Plus said that it was introducing a new dress code, with effect from June, that required staff to dress in a professional way. For men, that meant a collar and tie; and for women something to a similar standard.
Mr Thompson, who worked as an administrator and did not come face to face with the public, refused to comply. He was given a formal warning, after which he wore a collar and tie under protest, but lodged a claim of direct sex discrimination.
What was the view of the tribunal?
The tribunal said the new dress code amounted to direct discrimination - the only reason Mr Thompson was required to wear a collar and tie was because he was a man.
This worked against him in two ways. First of all, he had been forced to dress differently for no good reason, unlike the female staff, which amounted to less favourable treatment. And secondly, he had been subject to disciplinary action.
What about the EAT?
The appeal tribunal said that what the applicant had to show was not that he had been treated differently, but that he'd been treated less favourably.
Based on previous decisions, the EAT said that clothing rules should be looked at as a whole to assess whether they were more restrictive for one sex as opposed to the other.
For instance, the Court of Appeal decided in Smith v Safeway plc that requiring a male member of staff to have collar length hair was not discriminatory, although women could have long hair. It said that having a particular requirement in a code that applies to one sex does not necessarily make the whole code less favourable to them.
Why was the tribunal's reasoning flawed?
The EAT therefore decided that the tribunal's reasoning was flawed. First of all, it had misapplied the 'but for' test and said that 'but for' the fact that Mr Thompson was male, he would not have been required to wear a shirt and tie.
This test should only have been applied after it had established that there had been less favourable treatment, not to ascertain whether there had been unfavourable treatment.
In Thompsons' view, this is a technical point. It is clear from the decision of the employment tribunal that there was less favourable treatment - in that men were required to dress to a smarter standard than women.
The EAT said the tribunal should have asked 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.
Instead, the tribunal asked whether men were being required to attain a higher level of smartness than women, so the case was remitted for a fresh hearing.