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How a well-thought-out dress code can reduce the risk of discrimination claims

Research from Acas recently highlighted the risk of employers losing out on talented young employees because of their negative attitudes towards tattoos and piercings.

Earlier this year, Nicola Thorpe made the news after she was turned away from her first day at work having refused to wear high heels in her role as a temporary receptionist. The headlines on such issues can seem extreme at times, but there are real risks that an employer’s dress code could be discriminatory where the requirements for men and women are different.

That is not to say that men and women should be required to dress exactly the same, of course, but there should be equivalence between the sexes. This was confirmed in a case in 2004 were male Job Centre employees complained about having to wear a tie to work. The Employment Appeal Tribunal (EAT) found there had been no less favourable treatment as women in the same role were required to “dress appropriately and to a similar standard". Employers should make sure any differences between the requirements for men and women in their dress codes have been considered properly.

More problematic – and less obvious – are dress codes that, on the face of it, apply equally to all but which have an indirectly discriminatory impact on a particular group. For example, a ban on tattoos is likely to have a disproportionate impact on younger employees because of a greater prevalence of tattoos among younger people.

In such cases, the law gives employers the opportunity to justify any discrimination if it can be shown that it is a proportionate means of achieving a legitimate aim. For example, in one case, the EAT found that it was justifiable for an employer to ask a female Muslim employee to wear a shorter jilbab (full-length outer garment) to work because she worked in a children's nursery, and the length of her clothing was considered to be a tripping risk to other members of staff and the children. This requirement was found to be a proportionate means of achieving the legitimate aim of preserving the health and safety of other staff and children.

Health and safety, and hygiene reasons, are likely to be some of the best justifications for employers’ dress code restrictions, but other factors may also justify potential discrimination. The maintenance of professional work standards, for example, can also be a legitimate aim. In another tribunal case, a teacher was banned by her school from wearing a full face veil that left only her eyes visible on the basis that she could not carry out her role properly unless the children were able to see her face.

This case also demonstrates the need to show not only a legitimate aim but also proportionality. The school concerned had looked at alternatives and decided that the ban should only apply to the time when the employee was actually teaching. She was not prevented from wearing the veil at other times.

However, dress codes can be based on less tangible issues than health and safety, hygiene or work standards. Employers often seek to promote their brand or project a certain corporate image through their dress codes, and it is these situations that are more likely to result in discrimination claims. The way that we dress at work has changed dramatically in the last 20 years, and it is now increasingly common and acceptable for employees to be casually dressed. Employers wishing to impose a dress code that may be indirectly discriminatory need to think carefully about what exactly it is they are trying to put across about their brand and what it means to be 'professional'. Are high heels or a ban on tattoos really necessary, for example?

Practical tips

When forming or reviewing a dress code, employers should:

  • Consider the basis for the organisation’s requirements and set this out clearly in the dress code policy
  • Follow Acas’s advice to consult with employees on the policy
  • If there is an objection to an aspect of the code, think carefully about how to deal with it and do not rely without thinking on the precise terms of the policy
  • Decide whether it is necessary and appropriate to apply the same dress code to all employees
  • Revisit the dress code policy on a regular basis to ensure it is up to date and that the risk of discrimination is minimised.

Added: 20-10-2016
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