During the summer heat, many employers relax their dress codes to allow employees to wear less formal clothing. But following the recent news that a bank employee in the US was dismissed after refusing to tone down the way she dressed, to what extent can employers legitimately control what their employees wear (or don’t wear)? And how can they ensure their employees still dress appropriately for work, however hot it is outside?
The courts and tribunals have recognised it is lawful to have a dress code as part of an employer’s right to protect its business image and reputation. But this must be balanced against the reasonable freedom of the employee. Dress codes often extend beyond restrictions on types of clothing and can cover hair, facial hair, jewellery and piercings. So the enforcement of dress codes can be a contentious issue resulting in disputes involving claims of unfair dismissal and discrimination.
Rationale
If employers wish to have a dress code (including an option for dressing down during the summer), they should have a sound business rationale for any particular requirements they wish to include. It has generally been accepted that a uniform is necessary in the service or retail industry. But for those who are not required to wear one, the overall principle is that an employee should dress in a manner which is suitable and appropriate to the employer’s business. Having a dress code should provide certainty for employees as to what is expected of them.
Much will depend on the type of work the employee carries out, whether they have contact with clients or members of the public, and the nature of the business and industry in which they work. Any rules about dress and appearance can be included in the employment contract or set out in a separate policy, but may simply be implied. If an employer seeks to enforce a dress code through the disciplinary procedure, it will need to ensure its employees are very clear on what is expected of them. If not, this could lead to claims of unfair dismissal, including constructive dismissal.
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Unfair dismissal
In the US case mentioned above, the employee is claiming the real reason her employer dismissed her was because her male colleagues were distracted by her looks and could not focus on their work. If an employee’s alleged breach of a dress code results in dismissal, the employer will need to show it has a fair reason and has followed a fair procedure. The employer will usually defend this type of claim on the basis of some form of misconduct on the part of the employee, or say it is fair “for some other substantial reason”. In deciding whether the dismissal is fair, a tribunal will take into account the employer’s reasons for imposing the dress code. These could include:
- contact with clients
- health and safety or hygiene reasons
- whether the dress code is a contractual requirement
- the reasons for the employee’s objection; and
- whether the employee knew and understood the rules.
A tribunal would also look at the way in which the employer had enforced the dress code, including the procedures followed.
Discrimination legislation
Employers should also take care to ensure that a dress code is not in breach of any of the discrimination legislation. So far, most of the cases on dress codes have involved allegations of sex discrimination, race discrimination or religious discrimination. But it is possible that a dress code could be in breach of other forms of discrimination such as age, disability or sexual orientation. There have been high-profile claims of sex discrimination where the dress code has involved different clothing requirements for men and women and differing requirements over length of hair. These have established that, if men and women are subject to equally restrictive but different dress requirements, there is no discrimination. It can be difficult to assess whether a requirement is equally restrictive and, as social conventions are continually changing, employers should ensure that any dress code is regularly reviewed. Some organisations will be able to justify imposing a more conventional dress code than others.
There has also been a lot of media attention focused on cases involving issues of religious discrimination where individuals wish to wear certain items of jewellery – for example, a visible crucifix or nose stud, or dress such as the veil or a headscarf. Employers will need to ensure that any apparently neutral dress code requirements do not indirectly discriminate on the grounds of religion or race, or that, if they do, this can be objectively justified and there is no other less discriminatory way of achieving the same objective. An obvious example is a requirement not to wear headwear, which could indirectly discriminate against Sikh men, who are required to wear turbans.
The key message for employers is to ensure the requirements of their dress code are clear and do not go beyond what is necessary and appropriate for the particular job. This should help to minimise any potential liability for claims, while maintaining the balance between the business needs of the employer and the employee’s freedom to choose what to wear.
Top tips
- Make sure your dress code is clear and that staff understand exactly what is required. Give examples of what constitutes ‘smart’, ‘business-like’ or ‘smart casual’. Mention anything which is specifically excluded, such as denim, shorts or trainers.
- When drawing up and introducing a dress code, consider consulting with employees or their representatives to get an indication of any potential issues.
- Communicate the dress code or uniform policy to all employees. Make sure they are aware of it and the penalties for non-compliance, including the potential for disciplinary action.
- Apply the dress code equally to all employees. Do not differentiate between the sexes unless absolutely necessary. This will minimise allegations of sex discrimination.
- Ensure that any requirements are set out as broadly as possible to allow for flexibility for employees with particular cultural or religious obligations.
- Ensure there are no hidden discrimination pitfalls in a blanket policy – consider the Acas guidance which sets out specific dress requirements for particular religions and beliefs.
- Check any employee objections to compliance for potentially discriminatory grounds. Handle the situation sensitively and try to accommodate the employee’s needs.
- Ensure the dress code is enforced consistently and fairly.
- Review the code regularly to ensure it is up to date and reflects changing conventions.
Sophie Whitbread, associate, employment and pensions group, Charles Russell
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