Is it ever fair to expect employees to dress a certain way?

dress-codes

When receptionist Nicola Thorp was sent home from an assignment for wearing flat shoes it created a flurry of debate and a subsequent parliamentary inquiry. Now the results of the inquiry have been published, what does this mean for employers who operate uniform or dress code policies?

If you work for the Trump administration in the US, women need to “dress like women”, while male staffers are expected to have “good stature, hair well-groomed” and always wear ties, according to a source close to the White House.

Here in the UK, dress codes have also been making headlines. High heels and workplace dress codes, a report issued by the Women and Equalities Commission and the Petitions Committee last month, made for surprising reading at times.

The committees collected evidence from women who had been subject to indirectly or directly discriminatory dress codes at work.

One account related to a black woman who applied for a job at Harrods through an agency and was told to chemically straighten her hair. Many related to restaurant or retail workers who were forced to complete long shifts wearing high stiletto heels.

The report was commissioned as part of an inquiry that was launched last year, after receptionist Nicola Thorp was sent home from an agency assignment at consulting firm PwC for wearing flat shoes.

Among other proposals, the report’s authors called for the Government to introduce tougher penalties for companies found to be enforcing sexist dress codes, and recommended a national campaign to raise awareness of female workers’ rights.

Sign of the times?

In some sectors any sort of dress code is now considered anachronistic, but there are clearly still sectors where there is an expectation of workers – of either gender, but often more so women – must look a certain way.

Flight attendants, for example, are expected to wear a uniform and keep personal grooming to a certain standard, while many front of house staff at corporate law firms and consultancies now have a subtle uniform that reflects their brand.

“Neither men nor women should be unfairly asked to dress in a certain way within the workplace. If both men and women are instructed to be smart, then this should not be a problem,” says Prof Binna Kandola, senior partner at diversity consultancy Pearn Kandola.

“However, if instructions are given to women (such as you must wear make-up and heels), but not to men (not wearing a tie), then gender bias is at play.”

But does expecting client-facing employees to present a certain image always carry a discrimination risk? Many employers prefer to offer certain staff a uniform because it allows them more say over clients’ first impressions of the company – providing a good quality suit or dress can also be a staff perk.

Sophie English is a designer who has worked with a number of top law firms on bespoke uniforms. She says an increasing number of companies want to retain control of their image and so invest in clothing for client-facing staff.

“We might be asked to design a capsule wardrobe for staff so they can mix and match items, but the company knows they’ll still look smart,” she explains. “They get employees involved in the decision-making though, many women like the option to wear trousers, for example, and sell it as a benefit.”

A requirement for women to wear skirts is unlikely to be lawful: a requirement for them to wear short skirts is most unlikely to be so.” – Jonathan Chamberlain, Gowling WLG

The aim is also to be as inclusive as possible, rather than make employees feel uncomfortable. English adds: “We’ve had to offer different sleeve lengths for religious reasons and we definitely factor in people of all sizes, fitting uniforms for someone personally if need be.”

Fair treatment

Suzanne Horne, partner at law firm Paul Hastings, says it is not discrimination to require your employees to dress appropriately and professionally for the workplace. She says: “What you wear at work is not an opportunity to express yourself. The question now is what does ‘appropriate’ mean in the modern workplace?”

Laura Burnett, employment law team manager at advisory company Citation agrees that being “on-brand” should not be a problem. “They can ask reception staff to dress in accordance with a brand or corporate business dress code. However, forcing them to wear certain elements, such as high heels, is a no-no,” she says.

That’s not to say that some dress codes cannot be over-prescriptive. Investment bank UBS famously revised its 44-page dress code in 2011 after it made headlines for its bizarre level of detail – including advice on how not to smell of garlic and suggesting employees wear skin-coloured underwear.

The risks lie in dress codes that put certain groups at a disadvantage, says Eleanor Gilbert, a senior associate at law firm Winckworth Sherwood.

“What is considered indirect discrimination will turn on whether you can justify there was a legitimate aim for asking people to dress a certain way – for example, if it affects your brand – and the dress code requirement must be necessary to achieve that aim. In the case of direct sex discrimination, an employment tribunal would look at whether there was an equivalent dress code requirement for the opposite sex.”

Yet while there have been a number of indirect discrimination cases brought by workers who challenged a dress code for religious reasons, there is little case law involving sex discrimination and dress requirements. This may be because it is more difficult to prove less favourable treatment when it comes to work attire, adds Horne.

One of the few relevant cases is Dansie v Commissioner of Police for the Metropolis, where the Employment Appeal Tribunal held that the employer did not treat a male trainee officer less favourably when he wanted to wear his long hair in a bun, rather than meet the requirement for men to have short hair. It argued that this was not discriminatory, as the force would have treated a woman in a comparable situation the same way.

So is it safer to do away with a policy altogether? Gilbert argues that having nothing could make it difficult to enforce any ad-hoc requirement to look smart. “A policy sets a baseline requirement, the key is to treat everyone consistently,” she says.

“Decide what your brand is trying to portray and decide whether your dress code or uniform policy is fair and proportionate, while being alive to the discrimination risks such as does one requirement apply to one gender more than another, or will it adversely affect those with religious requirements?”

What works for your organisation?

It may also be worth considering your policy in the light of current trends, and weigh up whether or not its principles can be applied fairly – something that’s difficult when dress sense and appearance tends to be subjective.

She says: “A few years ago, hardly anyone had a beard but now they’re very common. Consider, for example, is a requirement that women wear make-up the same as asking men to shave a beard off? What about visible tattoos? They’re acceptable in some sectors but unthinkable in others. It’s about what works in your organisation – getting prescriptive about make-up or grooming could create some risks.”

With uniforms, the key is to be fair-handed, says Jonathan Chamberlain, partner at Gowling WLG. “Dress codes as such are not a problem, nor are staff uniforms. The issues are when codes or uniforms reinforce gender stereotypes or demean one sex, usually women,” he explains.

“A requirement for women to wear skirts is unlikely to be lawful: a requirement for them to wear short skirts is most unlikely to be so.”

In its evidence to the inquiry, the TUC points out that many women are put off challenging discriminatory dress codes when the cost of taking their employer to tribunal could be as much as £1,200, while awards are “often less than the fee itself”.

So despite the recommendations of the Women and Equalities Committee and Petitions Committee, it’s unlikely there will be a surge in tribunal claims on the back of this report.

It should serve as a useful reminder to employers, however, of the value of a common-sense dress code or uniform that reflects their brand without compromising the men or women who have to wear it.