Employment law clinic No 2 Introducing casual dress

The
challenge: The HR function of a pharmaceuticals company has decided to
introduce a dress-down policy for the 130 employees engaged in its e-commerce
business. But it needs to manage this without causing problems among the other 5,000
staff. These are the considerations the company needs to take into account.
Elaine Aarons & Robbie Gilbert weigh up the issues

Legal
issues

The
employer needs a clear policy stating the standards of dress required. This should
state the kind of dress which is not permitted.

While
policies that are incorporated into the contract of employment provide lawyers
with the strongest ammunition when it comes to enforcement, an overly rigid
approach may be in conflict with the desire to embrace a more informal culture.

A
policy that is not incorporated can be issued to employees without them having
to sign acceptance of it. This will still go a long way towards setting the
standard.

As
long as the policy is reasonable in its scope, even if it is not incorporated,
any employee who contravenes the policy will be in breach of a reasonable
instruction and disciplinary action can be taken. The company will need to
prove that the employee received a copy of the policy. The usual disciplinary
procedures should be followed.

Ideally,
the policy should also state the standards for those who are not permitted to
dress casually. Take care how you approach this. If you have to take any
disciplinary action against members of that group on the basis of standards of
dress, you may have to justify the approach adopted. If the individual being
criticised has no customer contact it may be harder to justify adopting more
stringent standards.

Generally,
breaches of a dress code are unlikely to be grounds for summary dismissal. A
deliberate or flagrant breach of health and safety rules may be an exception
but, even then, it will depend on the facts.

Employers
should avoid personal preferences when deciding if someone is dressing
appropriately. Any objections must be objective and non-discriminatory.

When
objecting to a standard of dress employers must be careful not to indirectly
discriminate on grounds of sex, race, disability or transsexualism.

As
the Human Rights Act contains the right to self-expression and new EU laws will
be introduced by 2005 covering age, religion and sexual orientation, the best
way forward must be to respect diversity. Although a relatively liberal
approach will minimise conflict, it seems likely that employers will continue to
have the right to require reasonable standards to be upheld, even under these
new areas of legislation.

HR
issues

The
IT end of a business is as good a place as any to break down traditional dress
codes. Casual dress is part of the culture and, as with academia or print
journalism, dressing down often goes with fierce commitment to the job.

Communication
is a key issue. Cynics by the copier may think this is just the latest fad. The
company should present the move as part of a genuine commitment to diversity
and express the expectation that the move will lead to better business results.
It could make it clear that this was a pilot for the company as a whole rather
than a ring-fenced move, and marks a move towards a different overall culture.

Contrary
to common fears, you are not likely to face the problem of people dressing down
to the too-bare minimum. With air conditioning increasingly widespread, and
quite possibly early starts or late finishes, few people want to wear too
little, even in the height of summer. There is, however, still the issue of
common decency.

To
accompany a shift to casual dress with specific guidance on what may be worn
may seem an odd thing to do. In reality, most of the staff will be thoroughly
sensible, seeking to retain the respect of their colleagues in their choice of
clothing. However, issuing some guidance would be wise. Managers need to be
able to curtail the excesses of the odd exhibitionist. Health and safety and
standards of hygiene have to be observed. People with occasional customer
contact need to know what they can wear and when.

The
company may want a way back in case the policy doesn’t work out. The guidance
can make it clear that it does not expect people to buy new wardrobes, and that
it is a six-month trial, with an initial review after three months.

If
the guidance is broken, the action taken will depend on the case.
Discriminatory actions cannot be lightly dismissed. Most will be minor matters,
however, and should be treated as such. Managers should be trained in how to
approach such cases. Ultimately, even non-serious breaches, which are knowingly
repeated, may become a disciplinary issue. If it was important enough to
establish a rule, that rule is important enough to enforce.

The
e-commerce staff will have direct contact with others who will want to know how
the casual dress policy works. An initial communication can be sent to all
staff, making clear that this is a trial and indicating a wish to spread the
practice after the period, depending on how it affects relationships in the
workplace, customers and business success.

By
Elaine Aarons, partner, and Robbie Gilbert, HR consultant, Eversheds

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