02 May 2017
Workplace dress codes and surrounding discrimination issues have been a very hot topic of late, with many calling for further guidance on the topic. In response, the Government Equalities Office, in conjunction with ACAS, the Equality and Human Rights Commission, and the Health Safety Executive, have announced that they plan to publish workplace dress code guidance for employers this summer. This follows recommendations in a report by the Women and Equalities Committee and the Petitions Committee, which was sparked by Nicola Thorp’s petition involving a policy for women to wear two-to-four inch heels shoes while at work. Her petition attracted over 150,000 signatures. Although the Government have indicated there will be no changes to the law, how does an employer protect themselves from potential liability from Employment Tribunal claims, particularly in relation to discrimination claims, when they require their staff to adhere to a dress code or to wear a uniform?
Can employers require all employees to wear uniform?Employers can require all employees to wear a uniform, but they should have some flexibility in order to circumvent unlawful discrimination. An employer should consider whether it is necessary for all employees to wear a uniform, as it may only be necessary for those employees who are in contact with customers or members of the public. Alternatively, there may be genuine health and safety reasons for wearing a uniform. If employers want employees to adhere to a dress code or to wear a uniform, they should adopt a dress code which outlines the standards of dress required, and stipulate any requirement to wear a uniform. In addition, the needs of particular groups of employees must be considered. For example, some women are required by their religion to cover their legs or heads. Furthermore, a pregnant employee may be unable to wear the uniform in the later stages of her pregnancy and modifications would need to be made. Therefore, an employer should always be open for the uniform to be modified or waived in these, and similar, circumstances.
Can employees refuse to wear a work uniform?Many workers may wonder, “Can I refuse to wear work uniform?”. They key points for employers to remember if your staff ask you this is as follows:
- You must avoid unlawful discrimination in your policy
- Dress codes must apply to men and women, but you can stipulate reasonable different requirements
- Disabled people must be catered for in your work environment
- You may have in place health & safety requirements to maintain certain standards—ensure this is clear in your policy
Can employers require female employees to wear a skirt?An employer can have a dress code which outlines that female employees are required to wear a skirt, but any such dress code should be applied sensitively and should be open to exceptions. Employers need to be aware of the risk that such a policy could establish sex discrimination. The position under current case law, such as the case of Smith v Safeway PLC  IRLR 456 CA, provides that when an employer applies a comparable standard of smartness and conventionality across the genders, the employer should not be determined to have directly discriminated on the grounds of sex by enforcing different requirements for men and women, such as requiring women to wear skirts. Similarly, there have been cases where employers have been found to have discriminated against women for requiring skirts to be worn, where the employer has not had an equal dress code policy for both sexes. In addition, particularly where skirts are concerned, female employees of certain faiths who have a religious requirement to cover their legs will challenge an employer who applies a dress code policy to female employees to wear skirts. This requirement is likely to be indirectly discriminatory on the grounds of religion or belief, as it is likely to be difficult for an employer to justify a requirement to wear a skirt where the alternative of wearing a smart trouser suit would be seen as reasonable.
Can employers stipulate the hair length of employees?There have been employers who wish to enforce a dress code which requires male employees to keep their hair short. However, this again has the pitfall of being potentially unlawful sex discrimination unless the employer applies a comparable or equivalent standard of smartness and conventionality for both sexes. A good example of this exists in the case of Smith v Safeway PLC (citation as above), where the employer had a policy which required that men should have neat hair no longer than collar length, and that no unconventional hairstyles were permitted. The employer’s female employees, however, could have long hair, provided that it was tied back. The court held that this was not discriminatory because the employer had applied the dress code equivalently equally to both sexes, even though there were conventional differences between the sexes. Conversely, the case of Pell v Wagstaff and Wheatley Hotel  found that it was discriminatory when the hotel refused to take on a male bar-job applicant because he would not cut off his ponytail. Similarly, any dress code which attempts to stipulate hair length may also be found to be discriminatory on grounds of religion. For example, male Hindus often wear a small hair knot at the back of the head, and a stringently enforced ponytail ban may lead to a claim of indirect religious discrimination. This can also be true for other religious groups, such as Rastafarians. In general, employers will be best advised that whatever their dress code or uniform, they need to be flexible in applying the policy and be sensitive to their employees protected characteristics such a race, sex and religion and belief unless they can robustly and objectively justify the requirements in their dress code.
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