Last week’s high-profile sex discrimination case should remind all employers
to ensure they have clear dress codes that apply the same standard to all employees
Matthew Thompson’s successful sex discrimination claim in the Manchester
employment tribunal last week places dress codes back under the spotlight. He
complained about having to wear a shirt and tie when female staff at the
Jobcentre where he worked were allowed to dress informally.
Picture this scenario: let us assume a company employs a number of
individuals who serve food to the public. Its dress code states that all staff
must dress smartly and have a conventional hairstyle – male employees must have
short hair, and female workers with long hair should ensure it is tied back.
Assume a male worker decides to grow his hair and is prepared to tie it back
in the same way as the female staff. If the employer insists he keeps his hair
short in accordance with its dress code, would this be sex discrimination?
Two alternative arguments have featured in employment tribunal cases. The
first involves asking whether it would be possible and practicable for both
male and female staff to be treated in the same way.
In our current scenario, this would involve recognising that it would be
possible for both male and female staff to be allowed to have long hair,
provided it was tied back. It could then be argued that a policy treating male
and female workers differently in such circumstances is at odds with the
underlying rationale of the Sex Discrimination Act 1975.
The second argument recognises that the Sex Discrimination Act 1975 does not
require an employer to apply exactly the same rules to male and female staff,
provided one sex is not treated less favourably than the other. If both male
and female employees are required to maintain conventional hairstyles, then the
same standard is applied to them both, making them equally disadvantaged by not
being allowed to adopt unconventional styles. A dress code that requires a
conventional standard of appearance is therefore not discriminatory if the same
‘standard’ is applied to all.
If the first argument were adopted, the ultimate position would be to allow
for men and women to be treated differently only as a direct result of the
physiological difference between them, and not as a result of something that
amounts to a question of custom and fashion. On the face of it, there appears
to be some merit in such an approach. However, it could potentially have far-reaching
consequences, including the possibility of a man succeeding in a sex
discrimination claim if he is not permitted to wear a skirt at work because
conventional dress is required.
It is no surprise the second argument is the one that has found favour with
the courts. In Smith v Safeway plc, the Court of Appeal concluded that an
appearance code that applies a common standard to what is conventional is not
discriminatory, and Smith therefore was not treated less favourably than female
staff when dismissed for refusing to cut his hair, while female workers were
allowed to tie back long hair.
Thompson’s claim against the Department of Work and Pensions does not
represent a change in the law – although it is a useful reminder to employers
to check that their dress codes apply the same standard to all. He is likely to
have succeeded because he had to dress formally compared with the less formal
dress of female staff, which was tolerated at his place of work – not because
he was required to wear a shirt and tie while his female colleagues were not.
Although Thompson’s claim is not ground-breaking by any means, it is
certainly a thought-provoking one.
By Lorraine Heard, Employment partner, Dickinson Dees