Employers need to approach a dress code with great caution, warns Jules Quinn from King & Spalding.
Employers often believe that they can adopt a “one size fits all” approach to their dress code policies.
This year we have already seen employers face reputational or legal challenges on requiring a receptionist to wear high heel shoes, the banning of Muslim head scarfs and burkhas and, most recently, conciliation service ACAS telling employers they are missing out on talent in not employing workers with visible tattoos. We all remember that, having spent thousands on legal fees defending its dress code all the way up to the Court of Appeal, BA was forced to abandon its policy of only allowing concealed necklaces with a religious silver cross.
The legal and PR ramifications for a strict or supposedly discriminatory dress code can be costly, both in terms of expenses and public image. So, apart from specific industries where dress codes are obviously very relevant (such as occupations involving health and safety, sport and leisure or the retail sector where branding and “lifestyle ambassadors” are key) should employers bother with a dress code?
Fraught with difficulty
The legal positions start from the premise that employers have a right to project a company image and set a dress code, particularly for customer or client facing roles. Such a policy, however, is fraught with legal difficulty and reputational issues.
Employers setting dress codes are at risk not just of claims of religious discrimination but also of claims of sex discrimination, disability discrimination and discrimination on grounds of gender reassignment.
Employers must ask themselves whether the dress code can be objectively justified. Will clients turn away or will an employee provide a better service or enhance a brand or profession by a certain sort of dress? Certainly I do my job just as well (if not better) in my jeans as opposed to being suited and booted. Many clients want me to wear or represent their brand rather than meet my own professional standards when I attend meetings on their premises.
A balancing act
Assuming an employer can justify a dress code, it then falls to a court to assess if that dress code is a proportionate means of achieving a legitimate aim. This is effectively a balancing exercise between the employer’s requirements and the impact or inconvenience to the employee. Dress codes are lawful but it does fall to the employer to justify why a certain level of smartness or a policy or, for example, religious neutrality is required.
A strict “no tattoos” policy, for instance, could leave an employer open to challenge on grounds of race or religious discrimination for Polynesian or Māori tattoos which are considered part of cultural heritage. Disney has certainly fallen foul of that issue most recently.
Any employer drafting a dress code needs to consider these issues, ideally in consultation with staff. Many employers adopt dress down Friday or casual dress in the summer months. Be prepared to make reasonable adjustments to your dress code in relation to disabled employees. It is possible to stipulate different clothing requirements for different sexes (for example, a shirt and tie for a man; see Schmidt v Austicks Bookshops Ltd [1978] ICR 85) provided that the overall effects of the rules are applied equally. However, for employees undergoing gender reassignment this would need to be flexibly applied.
Alas, there is no “off the peg” solution; dress code policies need to be tailored to fit individual cases.
Thanks, an interesting article. However, does this not only address indirect discrimination?
If a dress code specifically differentiates between men and women, we are in the realm of direct discrimination, which cannot be justified. For example, in ensuring a “smart” image, an office may require that employees wear appropriate office attire. Different assemblages will be expected of men and women – just because. Men might be expected to wear men’s suits, and women will be expected to wear women’s suits.
My understanding is that as long as such a difference is not unduly onerous on one gender, then it’s not considered discrimination. So you won’t be getting into the realm of justification in the first place. But deciding whether something is unduly onerous will often be fraught and subjective, though the tribunals will obviously try to make the rules sound objective.
Clarification of this issue would be welcome.
Raphael