Employment Law – What not to wear

This article, written for HR professionals, considers the issue of employee dress codes.

Employment dress codes have yet again made the news. In a recent tribunal case a civil servant resigned from his position at a Jobcentre Plus office, claiming constructive dismissal, after being disciplined for disobeying instructions for male employees to wear smart dress. Regularly attired in Hawaiian shirts and clashing ties, he argued that being told to wear a collar and tie was discriminatory and unnecessary, as he rarely dealt with the public. Female employees were able to wear what they liked and some arrived for work in skimpy and revealing outfits, showing tattoos, piercings and bare midriffs. The tribunal upheld the dismissal and pointed out that women were also expected to dress smartly, even if they did not have to wear a tie.

This decision provides yet further confirmation that employers are given a wide discretion to control the appearance of staff. However, the discretion is not unlimited and employers may exceed the limits of their discretion if they insist on employees adhering to a dress code which may not be necessary for, or appropriate to, the job.

Whilst one can imply a dress code term into an employee’s contract of employment, it is advisable to have an express term specifically dealing with the issue. An employee may be dismissed for breach of an express or implied rule as to clothing and appearance and if the dismissal is challenged in the tribunal, the employer will normally seek to establish that the dismissal was for a reason related to conduct under Employment Rights Act, s98(2)(b) or was for “some other substantial reason” under s98(1)(b). In determining the fairness of the dismissal the tribunal will consider whether dismissal was within the range of reasonable responses open to the employer under the terms of s98(4) and with all the circumstances of the case in mind.

In deciding this issue tribunals are likely to consider:

• the employer’s reasons for the clothing or appearance requirement
• whether the requirement forms part of the employment contract
• the employee’s reasons for objecting to the requirement
• the way in which the employer sets about enforcing the requirement
• the reasons for the employer’s requirement

Arguments deployed by employers to justify dress code requirements can include business image (clients), public perception and health and safety, including hygiene.

It advisable to include an express term dealing with appearance as well as one dealing with dress, so as to regulate employees attending work with, for example, bizarre haircuts and facial tattoos.

Of course, the application of the dress code and appearance policies will vary in relation to employees doing different jobs and employers may encounter difficulties in insisting that, say, a post room worker dresses to the same standard as a client-facing employee.

Where there’s a policy there are likely to be objections and even if dress rules are justifiable, employers must consider any legitimate objections that their employees may have. Objections include ill-health e.g. a broken leg in plaster, comfort e.g. a waitress not being able to wear a particular type of shoe, and issues potentially related to disability discrimination, e.g. in relation to footwear.

Furthermore, employers who apply different clothing or appearance rules to men and women leave themselves open to potential claims of sex discrimination. In the test case of Department for Work and Pensions v Thompson [2004] IRLR 348, an employment tribunal decided it was sex discrimination against men for an employer to adopt a dress code whereby all staff are required to dress “in a professional and businesslike way”, but men are required to wear a collar and tie, whereas women are required merely “to dress appropriately and to a similar standard”. The tribunal found that women working in Jobcentre Plus had greater choice in what they could wear than men (unlike in the recent publicised case mentioned at the beginning of this article where no discrimination was found; a curious feature of this area of the law is the preponderance of cases concerning civil servants working for the Department of Work and Pensions – quite why job centres should be such a hotbed of dress-related male resentment is anybody’s guess!).

The Employment Appeal Tribunal (EAT), however, overturned the employment tribunal’s decision. The EAT found that if members of one sex are required to wear clothing of a particular kind, and members of the other sex are not, that does not necessarily mean that the former are treated less favourably than the latter. The EAT said that the question for the employment tribunal is whether, in the context of an overarching requirement for staff to dress in a professional and businesslike way, “applying contemporary standards of conventional dress wear, the level of smartness which Jobcentre Plus required of all its staff could only be achieved for men by requiring them to wear a collar and tie”. If that could be achieved by men dressing otherwise than in a collar and tie, “then the lack of flexibility in the dress code would suggest that male members of staff are being treated less favourably than female members of staff because it would not have been necessary to restrict men’s choice of what to wear in order to achieve the standard of smartness required”.

Employers must also be aware of potential race/religious discrimination and should consider whether chosen attire is for example (genuinely) religious-based e.g. orthodox Sikh men wearing beards and turbans, orthodox Jewish men wearing hats and Moslem women covering their arms, legs and heads.

Conclusion

Before you issue a warning or move to dismiss an employee for his/her appearance, be sure that you have considered why the employee dresses in that manner and whether knowingly or otherwise your dress code and appearance policies are discriminatory.

This article was first published on the Consult GEE Legal Human Resources website and is reproduced here with permission.