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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
