What measures can employers take to monitor employees’ choice of outfits for work?
The rights of employees to dress as they please must be balanced with the demands of discrimination legislation, and the need to convey a corporate image.
Q Can employers include an express contractual term relating to dress codes?
A Many employers in the UK have a dress code policy specifying what standard of dress and appearance is required of their employees. For some employers, it will merely state that they should dress in a smart fashion, so as to maintain a professional corporate image. For others, however, the policy may be more specific for health and safety reasons. As with any other policy, employers should ensure that it is incorporated in the contract of employment, is easily accessible, and that employees are aware of it, so that failure to follow the policy can be treated as a disciplinary matter.
Q Can employers request that female employees wear skirts and/or dresses at work?
A When introducing any dress code or rules as to what employees can wear, employers should be mindful of discrimination legislation. Making specific requests of female staff could be deemed as discrimination under the Sex Discrimination Act 1975 as, by restricting their choice of clothing for work, the female employees are suffering a detriment on account of their sex.
The leading UK case on this issue – which dates back to 1978, but is still being adopted by most tribunals – supports a ‘swings and roundabouts’ approach. This means that tribunals will assess a dress code as a whole, looking at whether restrictions are placed on both men and women, rather than assessing the policy with a garment-by-garment approach.
Consequently, a dress code that requires women to wear a skirt or dress may be lawful if similar restraints are placed on male employees, such as a requirement to always wear a tie.
Following a recent case concerning an employee working at a Jobcentre (Thompson v Department for Work and Pensions), employers should be wary of restrictions placed on male employees. If their choice of clothing is restricted by a dress code in a way that is not mirrored by the restrictions placed on their female colleagues, then the code could be deemed discriminatory.
Mr Thompson was required to wear a collar and tie while women were only required to “dress appropriately and to a similar standard”. The tribunal found that the policy was discriminatory in the specific requests that it placed upon male employees. The case was eventually settled, but acts as a reminder that male employees can be discriminated against in much the same way as their female colleagues.
Q Can employers require employees to remove clothing relating to their race and/or religious beliefs, so as to conform to any dress code?
A This is clearly a very sensitive area for employers given the implications of the Race Relations Act 1976 and, more recently, the Employment Equality (Religion or Belief) Regulations 2003.
Requiring female employees to wear skirts at work, as in the example above, may be a detriment to an employee who always covers their legs for cultural or religious reasons.
Much of the case law concerning racial discrimination and dress codes relates to employers’ requirements that employees wear certain clothing for health and safety reasons. In the past, tribunals have found that dress codes, although discriminatory, may be justifiable for health and safety reasons.
For example, a company’s decision to ban beards for hygiene reasons in a food factory was found to be justifiable, even though it discriminated against a Sikh worker.
However, the tribunals repeatedly reiterate that such dress codes must be implemented consistently, and that any objections must be treated with care and consideration.
Tribunals may not be so generous when faced with policies that are implemented purely for the purpose of maintaining a corporate image. Given that new regulations were only introduced last year, we have yet to see any cases concerning their impact on dress codes. To avoid being the first, the best advice to employers with dress codes in place is to treat any requests to dress contrary to the company code for religious or racial reasons with respect. Discuss how best to accommodate reasonable requests, and do so consistently.
Points to be considered:
– Has any dress code in place been communicated clearly to staff?
– Is the code applied consistently to male and female employees?
– Are there any specific items that should not be worn, and if so, are such prohibitions justified?
– Do any of the prohibitions have a disproportionate affect on certain racial and/or religious groups?