Keeping up appearances
Labour & European Law Review Weekly Issue 3 - September 1996 04 September 1996
Smith v Safeway PLC  IRLR 457(CA)
The Court of Appeal has upheld an Industrial Tribunal's decision that a man dismissed for refusing to cut his hair was not discriminated against on the grounds of his sex even where a woman with identical hair length would not have been dismissed. The court said requiring a conventional standard of appearance was not of itself directly discriminatory.
Safeway's appearance rules on hair length were different for men and women. An IT rejected a complaint of sex discrimination after Safeway said the aim of the policy was to promote a "conventional image" which was attractive for their customers.
The tribunal found that a retail store was entitled to have an appearance code, pointing to Schmidt v Austicks Bookshops Limited EAT 1977 IRLR 360.In Schmidt the Employment Appeal Tribunal held that it was not discriminatory to require a woman to wear a skirt rather than trousers.
The EAT held that where rules applied to men and women "although obviously, men and women being different, the rules in the two cases were not the same", there was no discrimination because "the employers treated both female and male staff alike in that both sexes were restricted in the choice of clothing for wear whilst at work".
In Smith the EAT overturned the tribunal's decision and held that a restriction on hair length for male employees was discriminatory. Schmidt was distinguished on the grounds that a uniform rule affected employees' appearance whilst at work whereas a hair length rule extended beyond work.
The Court of Appeal stated that "there is an important distinction between discrimination between the sexes and discrimination against one or other of the sexes. It is the latter that is forbidden by the Sex Discrimination Act 1975. A code which applies conventional standards is one which, so far as the criteria of appearance is concerned applies an even handed approach between men and women, and not one which is discriminatory".
The court confirmed that a package approach should be adopted to the effect of an appearance code. The fact that a restriction on appearance extends beyond work is a factor to be taken into account in assessing whether or not the rule is discriminatory but does not affect the test itself.The court found the tribunal had applied the test in Schmidt correctly and upheld their decision.
The argument that to require a "conventional" appearance for both men and women is not discriminatory is a variation on the theme, familiar to followers of English case law on discrimination on the grounds of sexual orientation, that to discriminate against a gay man and lesbian woman equally is not sex discrimination. Since the case of Smith, the ECJ has ruled in P v S and Cornwall County Council 1996 IRLR 347 (see edition 1) that dismissal of a transsexual for a reason related to a gender reassignment must be regarded as contrary to Article 5(1) of the Equal Treatment Directive guaranteeing to men and women the same working conditions without discrimination on the grounds of sex.
The Advocate General's opinion in P v S made a number of points about the comparable argument on transsexuals. "The objection is taken too much for granted that the factor of sex discrimination is missing on the grounds that 'female transsexuals' are not treated differently from 'male transsexuals'. In short, both are treated unfavourably, hence there can be no discrimination at all....I am not convinced by that view. How can it be denied that the cause of discrimination was precisely, and solely, sex?"
By analogy this argument holds good for Mr Smith. If he had been a woman he would not have been dismissed for refusal to cut his hair. No doubt the issue of appearance codes will be revisited in the light of P v S.
And what about Safeway's argument that a requirement for "conventional" dress is justified by customer preference? Justification is no defence to a claim of direct discrimination. So had the court decided there had been direct sex discrimination, the views of the customers would offer no defence.