Being smart about dress codes
Employment Law & HR Partner Nigel Crebbin highlights the importance of employers having a clear, consistent dress code for staff.
What to wear for work is often not left to the employee to decide. Employers frequently make requirements about what can and cannot be worn, but as some recent high profile cases have shown, you do need to be careful about dress codes.
It’s important that if you are going to have a dress code, you make that code clear to your employees and also make clear the reasons for it and the consequences of not complying. It’s also important to enforce the code consistently, so that if someone has to be warned or even dismissed for not keeping to the code, they can’t claim that they have been unfairly singled out. Inconsistent treatment could lead to claims in the Employment Tribunal of unfair dismissal or discrimination.
Discrimination clams can also arise from dress codes which impose different requirements on men and women or which have an impact on religion or belief.
It’s not necessarily unlawful to require male employees and female employees to dress differently. For example, a code which requires employees to dress in smart business clothes and which allows women to wear trouser suits or suits with a skirt, but says that male employees must only wear suits with trousers would be unlikely to contravene equality legislation. The code is imposing different requirements on men and women, but both are being required to conform with what society would regard as conventional standards of smart business dress.
However, a dress code which says that female employees must wear high-heeled shoes would risk falling foul of the Equality Act, as it would be imposing requirements on women which go beyond those imposed on men. There have been recent cases where female workers have argued that such a dress code requirement obliges them to wear shoes which can be uncomfortable and damaging to their feet and is therefore unlawful sex discrimination.
Avoiding religious discrimination is also something employers need to be well aware of when it comes to dress codes. For example, what if the dress code requires all employees not to wear visible jewellery, but then one employee says that it’s a requirement of their religion that they wear an item which is linked to their religion and that they have to have that item on show.
The code could amount to unlawful indirect discrimination, because the employer is imposing a requirement which applies to all of its employees irrespective of religion, but which causes a particular difficulty for employees whose religion requires them visibly to have that religious symbol on show.
The requirement would be likely to be unlawful religious discrimination, unless the employer could show that the requirement was there for a good reason and was a reasonable way of achieving that legitimate aim. For example, having jewellery of any form on show could be a health and safety risk in that particular workplace because of the particular machinery being used.
The important thing would be for the employer to explain to the employee why the requirement is there and to explore whether some compromise could reached, where the employee is able to meet the requirements of their faith, while also enabling the employer to meet its business needs.
Dress codes can also impact on other forms of discrimination too, such as race, disability and gender reassignment.
Useful general guidance on dress codes was published by the Government Equalities Office in May of this year and is available on line and there’s also further information available at the Acas website, acas.org.uk. However, this can be a tricky area of law and sometimes what is and is not lawful will depend upon the particular circumstances of your particular business and workplace.
If you would like any more advice on this topic then please contact Nigel Crebbin at firstname.lastname@example.org or by phone on: 01768-800855
About the author
Nigel is a Partner in the Employment Law & HR team at Burnetts.