The recent reshuffle in David Cameron’s Cabinet has brought out the best and worst of the Press. As an example of the “worst” is the focus on the clothes of the new female Cabinet members, and the references to a “Cabinet Catwalk”.
Twitter has been buzzing with comments about how unfair this is, and how men’s clothes are never commented upon. Nick Clegg even posted a tongue-in-cheek picture of what he wore to work, tweeting that he hoped it met with the papers’ approval.
Of course, this is not an employment issue. But it does reflect a theme that often arises in the context of the workplace – namely, what is acceptable dress and does that differ as between men and women? Can the employer impose a dress code, and what risks might arise. Joanne Perry, an employment solicitor at Sherrards, takes a closer look at the bigger picture.
There is absolutely nothing wrong with having a dress code in place. Indeed, depending upon the type of work undertaken by the employee, it might be obligatory (e.g. uniform).
The content of a dress code will probably depend upon the nature of the business – not only whether there is a uniform requirement but also whether there is a need to wear protective clothing for health and safety reasons, or whether there is contact with customers or other external bodies.
There is also a recognition that “acceptable dress” differs as between men and women. Women would not normally, for example, be required to wear a three-piece suit and, conversely, men would not be required to wear a skirt.
Risks of Discrimination
When formulating a dress code, employers should always keep one eye on potential areas of discrimination. Regard needs to be had, in particular, to different degrees of “acceptableness” as between men and women, and also possible religious sensitivities.
As a general rule, the dress code should not be any more stringent for one group than another. Wherever possible, variations should be allowed to cater for religious beliefs. This applies whether or not a uniform is in place. There should be good reasons for any particular rules or demands, so that you can justify the requirement if necessary.
In particular, a dress code will have less risk of being considered discriminatory if the employer can demonstrate that it is both proportionate and necessary, having regard to the role carried out by the employee. The law does not require that everybody is treated exactly the same (e.g. ALL employees must wear a shirt and tie, or ALL employees must wear skirts), rather that neither sex is treated more (or less) favourably than the other.
It can be acceptable to place gender-specific restrictions, such as preventing skirts from being too short or heels being too high, provided that the dress code is not seen as being one-sided. Preventing men from wearing shorts, or sandals with trousers, would be a counterbalance.
Acceptable examples of restrictions on dress include not allowing employees who have contact with customers to wear jeans (applies equally to men and women, and unlikely to have any religious ramifications), and requiring all staff working in a kitchen to tie their hair back and cover it for hygiene reasons (although, generally speaking, more women will be affected, both sexes are covered by the rule and there is good justification for it).
There are areas where particular sensitivity is required. If the dress code requires all women to wear skirts, for example, this may disadvantage Muslim women who wish to cover up their legs by wearing trousers. Since the wearing of skirts is unlikely to be a necessary requirement of the job (as, generally, it comes from the requirement to look smart, which can equally be achieved with trousers), then such policies should be amended accordingly.
If, however, there are health and safety issues – such as the requirement to wear hard hats on a building site – there is more chance of an employer being able to justify the requirement. It is worth noting here that Sikhs are exempted from an obligation to wear safety helmets on construction sites if they wear a turban.
Be aware, too, of potential issues arising in the event that an employee undergoes a gender reassignment. It would be unlawful for an employer to seek to prevent such an individual from dressing in accordance with the “normal” rules applicable to their new gender.
The above rules apply equally when a uniform is required to be worn. Be careful not to apply the uniform requirements too rigidly unless there are good reasons for doing so. In one case, a British Airways employee who was prohibited from wearing a discreet cross was found to have been discriminated against. However, in another case, an instruction to remove a cross from an employee in a hospital ward was reasonable because it was on health and safety grounds.
Dress Codes in Practice
When drafting a dress code, here are some practical tips:
- Explain at the outset the reason for implementing the dress code, e.g. professionalism within the workplace, setting a particular corporate brand or image or complying with health and safety requirements.
- Ensure that the dress code, whilst allowing for different clothes for men and women in accordance with society’s “norms”, does not disadvantage one gender over another.
- Think about whether the dress code might disadvantage any particular religion or belief. If an employee raises an issue that you had not thought about in which they say they are being disadvantaged, be flexible and give full consideration to whether their request can be accommodated.
- Similarly, take seriously any other concerns that are raised. An individual who has a skin complaint made worse by tight clothing might be unable to wear a tie. Depending on the circumstances, the individual may be protected by disability discrimination legislation. Reasonable adjustments should therefore be considered and applied.
- Make sure that you can objectively justify any refusals to make an exception to the dress code.
For help with any of the above employment issues in the workplace, please contact a member of the Employment team in St Albans and London.