Most employers have a policy or uniform code to govern the appearance of employees whilst at work. Many of these policies will contain a brief statement requiring employees to “dress smartly and appropriately” or wear a required uniform. However, some employers, particularly in the customer service sector, have been found to have prescriptive dress codes, particularly for female members of staff – some policies even setting out what heel size or lipstick colour they must wear.
Many may remember the case of Nicola Thorp, the receptionist who, in 2015, was sent home without pay by her agency for refusing to wear heels at work. Ms Thorp started an e-petition to ban requiring women to wear high heels at work. Over 150,000 people signed the petition. This led to a Government inquiry into workplace dress codes, particularly in the hospitality, retail, tourism and travel, agency and corporate services sector. The report, entitled “High heels and workplace dress codes” was published in January 2017 and made such recommendations as changing the legal test for sex discrimination to make it more subjective – e.g. more dependent on the claimant’s perception of the dress code and also changing the law to define what can be a “legitimate aim” to an otherwise discriminatory dress code.
The Government published its response to the inquiry report at the end of April 2017. Although the Government rejected many of the proposals raised by the inquiry, particularly the recommendation to increase financial penalties on employers and calls to make legislative changes, it did agree to take the following steps:
- Together with ACAS and the HSE, to provide detailed guidance for employers about dress codes, which it aims to publish in summer 2017. It should also provide clarification on which “legitimate aims” are reasonable.
- To work with the Government Equalities Office, ACAS, the Equalities and Human Rights Commission and the HSE on options for raising awareness about dress codes in the workplace.
There have also been a number of high profile cases both domestically and in Europe concerning the issue of work place dress codes and whether they are discriminatory. For example, in 2013 in a number of joined cases focused on whether the banning by employers, for example British Airways, of employees visibly wearing a cross at work was discriminatory
on the grounds of religion and belief. Whilst, British Airway’s policy of trying to protect its ‘brand’ was not considered to be a legitimate reason for banning the wearing of a cross at work (whilst other employees were allowed to wear religious dress and/or symbols); an NHS Trust was able to justify its ban on the grounds of health and safety.
In 2017, two European Court of Justice (CJEU) decisions also considered the same issue. In Achbita v G4S Secure Solutions, G4S in Belgium dismissed a receptionist for breaching its policy of 'neutrality', which prohibited all its employees from wearing any visible signs of their political, philosophical or religious beliefs. The CJEU found that whilst this policy did not amount to direct discrimination since the same policy applied to all staff, had the claimant argued G4S’s policy amounted to indirect discrimination, the outcome could have been different. In the second case before the CJEU, a French design engineer was dismissed after a customer complained about her wearing a headscarf. Here the employer tried to argue that customer’s complaints or preferences were a justification; however, the CJEU held that a customer’s wishes were not a ‘genuine and determining occupational requirement’. Although the G4S decision has been reported by some as a decision which gives employers carte blanche to ban the wearing of headscarves and other religious symbols at work, this is perhaps overstating the impact of the decision.
Points for employers
The best advice for employers is to continue to take a cautious approach, based on cases of genuine necessity and legitimate business need. As the line of cases demonstrates, a requirement imposed for health and safety reasons may be justified, whereas a wish only to maintain a consistent corporate image may not be. This does not mean that employers cannot ask employees to dress smartly, but they should review their policies and consider if having a prescriptive approach can be objectively justified. Employers should consider whether there is a difference in the requirements between men and women or those of different religions as this could be potentially discriminatory. Employers could consider whether corporate image really requires such a level of prescriptive detail and whether the same results could be achieved by a more general policy statement about ensuring staff are “smart and appropriately dressed”.
With dress code issues currently in the public eye, we would recommend employers review their policies before the new Government guidance is published in the summer.
To discuss how the review of dress code might affect your organisation, or if you require any further information about our Leisure and Hospitality Team and how they can help you, please contact Helen Goss on 0118 852 7254 or email leisure&[email protected]
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.