Dansie v The Commissioner of Police for the Metropolis
This case considered whether enforcement of a gender-specific element of a dress code amounted to discrimination. A Dansie, a male police officer in training, reported to training at Hendon Police College with shoulder-length hair tied back in a bun. The force’s dress code required smart dress that portrayed a favourable impression of the service and a separate guidance document included a provision that hair should be neat, and long hair securely fastened up and worn close to the head.
Dansie was told to have his hair cut and threatened with disciplinary action if he did not. He complied to avoid disciplinary action and possible removal from the training programme. Subsequently, Dansie brought a tribunal claim alleging that he had been unlawfully discriminated against on the grounds of his sex. He claimed that a female colleague would not have been required to have her hair cut in the same circumstances. Dansie also alleged that the threat of disciplinary action if he failed to have his hair cut amounted to harassment under sex discrimination legislation.
The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision that Dansie’s claim of unlawful discrimination should be dismissed. It is an established legal principle that when considering whether a dress code is discriminatory, it is necessary to consider the code in its entirety. While enforcement of gender-specific provisions may result in one sex being treated less favourably than the other, there will be no finding of less favourable treatment if enforcement of the dress code as a whole does not treat one sex more favourably but results in equivalent standards.
It was decided that the force’s dress code was itself gender neutral. In addition, a female police officer in training would have been required to comply with any provisions of the dress code which affected only women, in the same way that Dansie was required to comply with the dress code as it affected him. Dansie had not, therefore, been treated less favourably than a female colleague would have been.
The EAT also upheld the tribunal’s finding that the threat of disciplinary action did not amount to harassment. It commented that considering whether conduct was harassment was a finding of fact by the original tribunal with which it would not interfere.
Many employers have dress codes, uniform policies or similar in place, and this decision should provide comfort to them that such codes may continue to include gender-specific provisions. The key to such policies is to ensure that, as a whole, they are gender neutral and that enforcement will not result in one sex being treated less favourably than another. Any gender-specific provisions should only be included so far as they are necessary, appropriate and reasonable to the role in question.
This case is also a useful reminder of the legal definition of harassment under discrimination legislation. Each case is decided on its own facts but an employer can protect itself by ensuring it understands the concept of harassment and has educated its staff and managers appropriately.
As always, employers should also ensure that any such policies and procedures are implemented and enforced fairly and consistently. So long as employers do this and are able to provide evidence of this, should an employee bring a claim of this nature, the employer will be well placed to rebut any allegations of discrimination.
Chris Bains, solicitor, Thomas Eggar