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Aims of a dress code policy
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Standards of dress and personal presentation are relevant to most employers and having a policy on dress code can be important.
Where the employees meet customers and are effectively the shop window for the company, the benefits of presentable appearance are obvious. But even where the employee’s work is internal, there are less tangible benefits such as:
- creating a team atmosphere,
- engendering standards of professionalism, and
- creating a corporate image.
Whether or not there is anything in writing, some minimum standards of personal presentation will be expected and an employee who consistently turns up unacceptably dressed can be disciplined.
However, a formal dress code creates clarity for both employer and employee as to what standards are expected.
Dress codes are separate from policies on the use of protective clothing, which would traditionally appear separately or as part of health and safety policy.
Who is the dress code for?
Dress codes would normally apply to all employees. However, there is nothing to stop a company imposing different policies for different types of role. For example, there could be a more formal dress code for “customer facing” employees than that for those working in the factory.
Essential elements of a dress code
In itself, a dress code can be as prescriptive or as informal as is appropriate for the company in question – its contents are very much a question of common sense. There are no legal principles which demand the inclusion of any one element.
However, a good dress code should be drawn up to avoid the various discrimination law pitfalls. If discriminatory practices are embedded within the policy, complainants may latch onto the code as evidence. By contrast, a good dress code can be an aid to proving there was no discrimination.
Legislation on dress codes: discrimination law
There are three areas of discrimination relevant to dress code policy:
1. Sex Discrimination Act 1975
2. Religious or Belief Regulations 2003
3. Disability Discrimination Act 1995.
Cases which before 2003 were brought under race discrimination law will now be brought under the Religion/Belief Regulations.
Sex discrimination and dress codes
There is the obvious potential for sex discrimination in any dress code which sets different requirements for men and women. Past claims have challenged policies that:
- women must wear skirts
- men should not have long hair
- men must wear a collar and tie.
The good news is that the courts have held that dress codes differentiating between men and women are not automatically discriminatory; all of the examples above have been found to be non-discriminatory in the past.
The reasoning is that discrimination is not ‘different treatment’ but ‘less favourable treatment’. Providing both sexes are required to dress to the same degree of formality then neither is treated less favourably. The court will not look at the dress code garment by garment, but judge the overall standard required. This standard must be the same for each gender, but can be made up of different elements (for examples, short hair for men, skirts for women) according to the conventions of that time and marketplace.
A note of caution – conventions change. The case allowing a policy to prescribe skirts for women dates back to the 1970s and may be found differently today. A safer option would be to offer a choice, providing it was still appropriately formal.
The same principles will apply where uniforms are worn – the employee will struggle to show discrimination just because uniforms differ due to gender.
Religion/belief discrimination and dress codes
A dress code which requires employees to act in a way contrary to their religious beliefs risks being indirectly discriminatory. Thus a dress code forbidding headgear will be discriminatory to male Sikhs, who must wear a turban.
The best way to avoid these problems is to be as non-specific as possible. A widely worded dress code requiring smart appearance, with non-binding examples of suitable dress, cannot fall foul of specific clothing-related beliefs.
To cross-check your dress code against the main religions’ clothing beliefs, refer to Acas’ Guide on Religion and Belief which has a useful chart at Appendix 2 (pages 40-50).
It may be possible for employers to objectively justify a dress code contrary to any of these beliefs, if it can be done so objectively. For example, employees at a chocolate factory were successfully prohibited from having beards for health and safety reasons. However, employers should be very wary of relying on objective justification as the courts are reluctant to accept it.
There may be a question mark in some cases whether a person’s views are beliefs. According to Acas, Rastafarianism (which requires the wearing of a hat) is a belief system. Certain political beliefs or powerful sentiments such as patriotism (the wearing of an American flag badge) may or may not be regarded as beliefs. Employers should respect beliefs that are strongly held whether or not they are religious in nature.
Disability discrimination and dress codes
Disabled employees may not be able to comply with a dress code (for example, an employee with a neck injury unable to wear a tie). However, by and large, this need not affect the way the code is drafted; instead, employers should be sensitive in the enforcement of the dress code.
Implementing a change of dress code
Dress code will be non-contractual (unless stated otherwise) as part of the company’s ‘work rules’. Frequently it will be incorporated within the staff handbook.
Legally, employers will be in a strong position if they wish to change dress code. There is always the risk of a constructive dismissal claim, but this can be minimised by providing reasonable notice, and would be difficult to prove in any but the most extreme cases.
In practice, the consequences are likely to affect employee relations. Issues of dress can be disproportionately sensitive and perks such as ‘dress-down Friday’ jealously protected.
If an employer has a significant number of employees of a particular religion, it may be worth consulting with representatives of that group (the local mosque, for example) in drawing up the code, as this could aid your defence in any discrimination claim.
Dress codes: PersonnelToday.com resources
Dress for Success – Could stricter dress codes keep employees in line and employers out of the courts? Dress code: networking discussion threads Employers relaxing work dress code can help improve productivity – 26 July 2006 Workplace dress codes: Questions and answers -14 February 2006
Tony Pettengell is off-message. Racism, fattism, heightism, crucifixism – you name it, there now seems to be an ‘ism’ for every occasion. Have faith in your dress code policy – 7 November 2006. British Airways and the crucifix
Solicitor Helen Colquhoun describes how the much publicised case regarding Nadia Eweida, a British Airways employee who threatened legal action after being told she could not wear a crucifix necklace with her uniform, does not set any new precedent.
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Duncan Bain is a solicitor at Morgan Cole
