A nursery worker who was chastised for wearing a dress that showed too much cleavage has lost her sex discrimination case.
The claimant at the employment tribunal worked at Bundles of Joy nursery in south London, where staff were required to wear a pink polo shirt, black trousers and flat shoes as their uniform.
According to the claimant, when she began work at the nursery there were no polo shirts available so she wore a stretchy black dress with a scooped neckline. The nursery would order polo shirts in batches as this was cheaper, and at this point did not have any in the claimant’s size.
A council representative that visited the nursery in January 2019 advised owner Zara Ahmed to “have a word” with the claimant about the dress as the amount of cleavage visible was “unprofessional in a nursery environment”.
The tribunal heard that how revealing the dress could be depended on what activities she was involved in with the children. Ahmed had told her employee in a meeting that the dress was too low-cut and could cause offence.
The nursery worker told the tribunal that she wears a large or extra-large in clothing sizes, but that her “build is far from unusual and well within the normal range”. The tribunal panel also saw CCTV images of her wearing the dress to work, confirming that it was figure-hugging.
However, in her tribunal claim, she alleged she had been told her “boobs were too big” in a meeting that was not in private as the doors were open. The nursery responded that the children were napping at the time.
The claimant raised a grievance with Bundles of Joy about the alleged comments and resigned from her role in May 2019.
She claimed her working hours were reduced as a result of the grievance, but the rota was amended after she raised the issue to her usual number of hours.
The tribunal dismissed her claim for sex discrimination because the nursery’s dress code was not discriminatory between men and women.
It also refuted the comment from her manager, who had instead said she had “too much breast on show”.
In judgment, Judge Dyal said: “The dress code itself was not discriminatory between men and women.
“The actual uniform was gender neutral and in our view the respondent would have applied the same standard to departures from the actual uniform (when employees wear their own clothes) whether dealing with a man or a woman.
“The standard was to dress conservatively and without exposing bodily flesh that would be inconsistent with conservative dress.”
It said the policy would have meant a hypothetical male employee would have been treated in the same way.
The judge cited examples such as “a man wearing a shirt with so many of the buttons undone that a lot of his chest was visible…. would have been asked to cover himself up by doing his shirt up”, “a man with a large build, whether because very muscular or overweight, wearing a shirt that was too small for him so that a lot of his flesh that would ordinarily be covered (e.g. the chest or tummy) could be seen… would have been asked to wear a more appropriate shirt that covered/fit him properly” or “a man wearing lycra shorts or leggings that showed the outline of his genitals…. would have been asked to wear something more modest.”
Finally, the tribunal concluded that the matter would have been avoided had the employee been provided with the company uniform.
The judgment added: “By the time the events in question occurred she had been employed by the respondent for over three months. That was plenty of time to sort the uniform situation out and it is unimpressive therefore that it was not.”