Policy clinic: dress codes

With Christmas fast approaching, many employees' thoughts will turn to spicing up their normal work attire with festive additions. But their choice of seasonal adornments might not stop at Christmas socks or silver tinsel, and companies may be compelled to take action against an employee who turns up to work in what the employer deems unsuitable at best, or likely to bring the organisation into disrepute at worst.

It is increasingly important that employ­ers are fully aware of how to draft and enforce dress codes to ensure that their organisations remain within the law and beyond reproach.

When it comes to "professional image", many employers are realising that getting out and marketing with other professionals is the key to business success.

Networking is no longer just the reserve of the senior level professionals but of all employees, and part of every employer brand is its people.

As employers are realising this, they are paying more attention to the appearance of their employees and the image and perception of the business that those workers bring into their particular marketplace. Dress, grooming and personal hygiene are all part and parcel of this.

However, the issue of work­place dress codes can be highly contentious, as recent, well-publicised cases have demonstrated. It is vital that employers are aware of the discrimination issues that dress codes can create.

Sex discrimination

In theory, there is nothing to stop an employer imposing specific dress guidelines, so long as those guidelines are imposed even-handedly.

Most dress codes, however, will reflect a conventional approach to sex and sexuality, which can give rise to complaints. For example, in Smith v Safeway plc, food handlers in Safeway stores were required to have "conventional hairstyles and colour", meaning women were prevented from having long hair loose and men were prevented from having hair below shirt collar length. Mr Smith had longer hair and was dismissed for refusing to have it cut short. The employment tribunal rejected his complaint of sex discrimination, allowing Safeway to apply a dress code to "preserve conventional appearances at work".

Additionally, a dress code does not have to be exactly the same for each sex. The Employment Appeal Tribunal (EAT) has also held that a policy requiring men to wear a suit and women simply to "dress appropriately" did not amount to sex discrimination.

Religious discrimination

Dress codes can also raise issues of discrimination on the basis of religion and belief.

Heathrow employee Amrit Lalji was reinstated to her position in the VIP lounge of Terminal One, after being suspended and then sacked for wearing a nose stud. Mrs Lalji, a practising Hindu, refused to remove her nose stud, stating it had religious importance and signified her married status.

Lalji was told that her nose stud went against a company policy that prohibited face-piercing that might be hazardous to customers.

It is difficult to see how a nose stud on an employee working in the VIP lounge would cause any such hazards to customers, and, had this case reached the employment tribunal, Lalji's employers may have had difficulties arguing that its policy was proportionate.

On reinstating Lalji, the company has stated that the rules relating to facial piercings were wrongly interpreted and are mandatory only in catering operations. This, at least, is more understandable, and, potentially, justifiable.

Constructive dismissal

Although discrimination claims are the main risk for employers imposing a dress code, there is an additional possibility that, by being too stringent and inflexible and failing to take employees' wishes or needs into account, an employer could be guilty of breaching the mutual obligation of trust and confidence between employer and employee, which is implied in every employment contract (whether written or not).

This may then lead to a claim of constructive unfair dismissal if the employee resigned because of the dress code issue. However, this would only be the case in very serious cases, where the employer was being entirely unreasonable.

Joanna Downes is assistant solicitor at Clarion solicitors

To dress up or dress down?

One problem for employers who want to ditch the traditional suit and tie without provoking an outbreak of beachwear and bare midriffs is to define 'smart casual'.

A survey by Employers' Law sister title Employment Review found that respondents either opted for general descriptions of appropriate dress as 'professional, clean and tidy' or listed banned items such jeans, shorts and flip-flops along with approved items such as chinos and polo shirts.

• 21% of employers stipulate formal business dress
• 38% say staff should wear 'smart casual' clothes
• 5% have guidelines best described as 'relaxed'
• 36% set out rules for groups of workers required to wear uniforms or overalls to carry out their jobs
• 63% were likely to let people dress as they liked on 'dress-down days'
• 43% said rules could also be relaxed for medical reasons
• 43% said rules could be relaxed in unusually hot or cold weather
• 37% said rules take account of an employee's religious beliefs.

Yet it seems workplace dress codes are more about image and culture than health and safety or other practical reasons, the Employment Review survey suggests.

• 75% said their policies were intended to enhance the organisation's image in the wider world
• 53% wanted to enhance internal company culture
• 49% had dress codes for health and safety reasons
• 19% were concerned about hygiene.

Of the 23 organisations not operating a dress code

• 15 said staff already dressed appropriately without rules
• 13 said their relaxed organisational culture made guidelines unnecessary
• Six organisations thought it would be too difficult to police the rules
• Three had already tried and failed
• One organisation said it feared a discrimination claim if it tried to enforce dress rules
• One organisation taking part in the survey had a complaint that its dress code was discriminatory.

Source: Study by Employment Review covering 68 employee dress codes

Drafting a dress code policy

Any guidelines should be carefully drafted, and employers are advised to treat any requests to dress contrary to the company code for religious or racial reasons with respect.

Employers should consult the employee in question and discuss how to accommodate reasonable requests, and try to find a favourable solution. A tribunal will be more likely to be sympathetic to the employer where a policy is required for health and safety purposes, rather than simply to maintain a corporate image.

• Decide what restrictions on employees' appearance are necessary and why. For example, teachers are expected to wear sensible footwear, suitable for the activities their job involves. Restrictions should not be excessive or unreasonable, for instance insisting on suits or ties in the office when employees are not customer-facing.
• Set out the guidelines clearly, and include the rationale behind any restrictions.
• Explain why restrictions may be placed on some employees but not others (for example, no body piercing for those operating heavy machinery for health and safety purposes, and those working within a café of a supermarket may have stricter codes enforced on them than those who work in the same store, but don't come into direct contact with food).
• Give employees notice of when the policy will come into force.
• Allow employees a grace period before disciplining for non-compliance.
• Explain what will happen if employees are found to be in persistent breach of the policy (disciplinary action and, potentially, dismissal).
• Give the name of an individual that employees can talk to if they feel they cannot comply with the policy.