No dress rehearsal

Dress
codes in the workplace are under the spotlight once again after a recent win
against an employer for discrimination. Be prepared, be flexible and sensitive
and ensure your policy is up-to-date. By Kerstie Skeaping

In the widely reported case brought by Matthew Thompson against the
Department of Work and Pensions, a tribunal found that the requirement that
male staff wear a collar and tie to work was discriminatory. This raises the
question again of whether employers can interfere with their employees’ choice
of dress and appearance.

So, does the Thompson case sound the death knell for dress codes in the
workplace and give employees a licence to dress less than professionally? In a
nutshell, no, but it does serve as a warning to employers.

Sex discrimination

Filing Solutions Limited (FSL) is a medium-sized business providing office
furniture and office storage solutions. It has a dress code whereby male colleagues
must wear a shirt and tie. However, FSL does not have an equivalent rule that
applies to women. One of FSL’s employees, Mark Todd, has complained that his
female colleagues have been attending work in shorts and t-shirts while he has
to wear a shirt and tie. Can FSL continue to enforce this dress code without
breaching sex discrimination legislation?

Kerstie Skeaping comments: To establish sex discrimination it is not
enough that a dress code treats men and women differently. For the code to be discriminatory,
the treatment of one sex must be less favourable than the other. As any
discrimination of this nature is direct discrimination, there is no opportunity
for the employer to rely on the defence of justification.

The legal position regarding dress codes and sex discrimination was set out
initially by the Employment Appeal Tribunal in Schmidt v Austicks Book Shops
Ltd in 1977. Schmidt was dismissed for refusing to comply with the employer’s
requirement that she wear a skirt, and not trousers, while serving the public.
The EAT held that rules concerning appearance will not be discriminatory simply
because their content is different for men and women, provided that they
enforce a common principle of smartness or conventionality.

In Schmidt, although women were required to wear skirts, men were required
to wear a shirt and tie and accordingly the EAT took the view that the dress
code should be taken as a whole and not item by item. When looked at this way,
the employer’s dress code did not treat either gender less favourably – both
were required to dress smartly.

In FSL’s case the requirement to wear a shirt and tie is gender-based and
there are no items of clothing imposed on women working in the same
establishment. Essentially, there is a dress code for men but not for women. In
fact, women are not obliged to wear smart tops and are even allowed to wear
t-shirts and shorts. This lack of even-handedness is likely to lead to a
finding of discrimination.

FSL has two options open to it in order to comply with sex discrimination
legislation. It may either abolish its dress code altogether or introduce a
dress code that imposes equivalent obligations on both sexes, for example,
imposing an equivalent requirement on female staff to wear smart clothes.

Race discrimination

Food Hogs Limited (FHL) is a large company involved in the preparation and
production of pre-packed meals for well-known supermarkets. It has a dress code
that provides that no employee should have facial hair and that all hair long
enough must be tied back. The dress code applies to all staff, including office
staff.

FHL has two Sikh employees, Avanesh Brar and Bhupinderpal Kapur, who have
expressed concerns regarding the dress code on the basis that they are strict
Sikhs and do not wish to remove their facial hair. Brar works in payroll in an
office opposite the factory and Kapur works as a food technician on the factory
floor. Should FHL reconsider its dress code?

KS comments: Apart from sex discrimination issues, dress codes can
also give rise to issues of race discrimination. But as these will usually be
indirect discrimination issues, it does at least give the employer the
opportunity to rely, if it can, on the defence of justification. Whether a rule
can be justified depends largely on its context.

Many employers in food preparation industries have been successful in
justifying rules requiring employees to shave off facial hair on the grounds of
hygiene. However, rules requiring women sales assistants to wear skirts have
been held to indirectly discriminate against Pakistani women and justification
on the grounds of maintaining a neat and tidy uniform was unsuccessful.

Overall, these cases suggest that a sensible and logical approach should be
adopted. If the requirement of a dress code that may indirectly discriminate on
racial grounds is necessary on the grounds of hygiene or safety then it may
well be justifiable. However, if the same end can be achieved with a little
flexibility (for instance, allowing female sales assistants to wear smart
trousers rather than skirts), then it will be much more difficult to justify
the rules.

In FHL’s case, it is likely that it can justify the dress code in relation
to Kapur on the grounds of hygiene. However, FHL may struggle to justify its
dress code in relation to Brar, who works in an office opposite the factory and
so there are no hygiene issues. FHL is therefore advised to amend its dress
code in relation to office staff.

Legislative changes to protect individuals from discrimination on religious
grounds are expected at the end of this year. This means that many groups that
were not protected under the race discrimination legislation will acquire
statutory rights with regard to discrimination for the first time. It is easy
to see how dress codes may negatively impact on some religious groups and how
additional caution will therefore be required from employers once the new
legislation is enacted.

In 1993, a case brought by a Rastafarian failed because Rastafarians were
held to be a religious group rather than a racial group. The same decision may
not, however, be reached under the new legislation. The individual in this case
claimed racial discrimination because he was refused employment after
indicating that he would not comply with the respondent’s dress code by cutting
off his dreadlocks.

The case would be dealt with differently once legislative changes take
effect. However, employers should look to the precedents set down by race
discrimination claims, such as those brought by Sikhs, for guidance. A claim
brought under the new religious discrimination legislation will also be for
indirect discrimination and therefore a dress code may be justifiable in
certain circumstances.

Human rights

Gambleon Limited (GL) is an independent financial advisor, specialising in
providing investment advice to medical professionals. Its clients are
predominantly established doctors and dentists. GL has a dress code in place
that states that all staff should be smartly dressed at all times, men should
wear a suit with a shirt and a tie and women should wear a suit with a blouse.

One of GL’s employees, Dakarai Manneke, has approached GL to inform it that
he is a male transvestite and that he intends to attend work dressed as a
female several times a week. Can GL prevent Manneke from attending work in
female attire?

KS comments: In the lead-up to the coming into force of the Human
Rights Act, there was a lot of speculation about the impact on the enforcement
of dress codes by employers. In particular, it was thought that the right to
freedom of expression might give employees another prong to their attack on a
dress code.

In fact, a case relating to this specific human right was brought before the
European Court of Human Rights in 1997. Paul Kara, a male transvestite,
complained that the dress policy imposed by his employer (a local council)
prevented him from wearing a dress at work and interfered with his private life
contrary to Article 8 and his freedom of expression under Article 10.

Kara was unsuccessful, however, as the Court held that the dress code
pursued a legitimate aim; that of "enhancing the public’s perception of a
local council’s work". The dress code only affected Kara during working
hours and so did not amount to a disproportionate interference with his private
life or freedom of expression.

As most of GL’s clients are established medical professionals, it is likely
that any tribunal would follow the European Court of Human Rights’ decision in
Kara and find that GL’s dress code pursues a legitimate aim, ie enhancing the
public’s perception of a financial advisor’s work. Therefore, GL is able to
refuse consent to allow Manneke to attend work dressed as a female.

Summary

Above all, employers should be careful to be sensible and even-handed in
their approach to dress codes. Conventional standards of dress and appearance
change over time and the courts generally apply what they consider to be the
current standards. Consequently, what was acceptable in a dress code in the
1970s may well not be acceptable any more.

If the code adversely affects members of one race or religious group,
employers should then look to see whether they can introduce an agreeable
compromise and, if, not they should be clear that such provisions may have to
be justified to a tribunal.

Key points

– Differences between the sexes on individual items of a dress code will
not, in themselves, be discriminatory.

– Employers should look at the overall affect of the dress code – consider
whether it has a greater or less favourable impact on one group of employees,
such as females. If it does, it may be discriminatory.

– Having a dress code for one group of employees (eg for male staff, but not
for others) may be discriminatory.

– Employers must be careful to ensure that dress codes not only appear even
handed but are enforced even-handedly.

– If a dress code is to be enforced, ensure that it is articulated clearly
to the workforce, preferably in a written policy.

– Where a dress code adversely affects members of one race or religious
group, employers should look to see whether a sensible compromise can be
reached. A common-sense approach should be adopted: can the same be achieved in
another, more acceptable, way?

– Employers should be aware that the law on discrimination is increasing,
and accordingly dress codes should be reviewed to ensure that it remains lawful
– with particular regard this year to religious discrimination.

Kerstie Skeaping is a solicitor with Addleshaw Goddards

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