Dress codes are a perpetual source of uncertainty for employers, and they're a particularly hot topic at the moment, thanks to the recent ECJ decision on headscarves and the MPs' debate on high heels at work. Alice Loughney, an Associate in the Employment, Labour and Equalities Team, unpicked some of the key tricky issues at our recent employment law seminar, and in this podcast she gives an overview of the main points for employers to watch out for when designing their workplace dress codes. How far can an employer go in specifying how employees present at work, while staying within the law?
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Emma Hine: Hello and welcome to Gowling WLG's podcast on the hot topic of dress codes in the workplace. My name is Emma Hine and I am an associate in the Employment, Labour and Equalities team. I am going to be talking to one of my colleagues, Alice Loughney, an associate in the team and picking her brains about how far an employer can go in specifying employee dress codes at work and still stay inside the law. So, Alice, as a starting point, can you tell us what rules are in place for employers writing their workplace dress codes and what legal parameters do they need to stay within?
Alice Loughney: There is no one piece of law saying this is what you can or can't have in your dress code. In theory, you can have what you like but the main legal constraints are health and safety and discrimination.
Emma: You mentioned discrimination there as being something that employers need to be alive to, can you tell me a bit more about what sort of discrimination issues you are alluding to here?
Alice: A dress code discrimination complaint could present itself in a number of ways. There are three main areas where this tends to come up. Firstly, if your dress code treats people with a certain protected characteristic differently from others, for example by requiring different standards of men and women, that could be direct discrimination, if it can be established that the difference in treatment is less favourable for one gender. Just because treatment is different it doesn't mean that it is automatically less favourable, and the courts have said that it is OK for employers to have specific gendered dress codes so long as the same standard is required of each sex when you look at the dress code in the round. So that is direct discrimination.
Secondly, you might have an apparently neutral rule on dress which, on the face of it, applies across your workforce equally but it could be indirect discrimination if that rule places one group at a particular disadvantage because of their protected characteristic. So, it might be indirect age discrimination to have a ban on tattoos or it might be indirect religious discrimination to have a ban on headwear.
Finally, employees are protected from victimisation on the grounds of making complaints about discriminatory dress codes, so it is important to make sure managers know to treat these complaints seriously.
Emma: So what is the risk for employers if they do get something wrong with their dress codes?
Alice: I think there are two key risks here. One is reputational and the other is financial.
Firstly, for reputational risk, I think it goes without saying that the potential for damage to brand and reputation here is huge. These types of cases attract loads of media attention. If we just look at the media storm caused by the ECJ's decision on headscarves at work this year. Also, the National coverage of the Government enquiry into sexist dress codes after a petition was brought by a receptionist who was sent home without pay when she refused to wear high heels. You don't want to be the employer at the centre of that kind of media scandal.
In terms of the financial risk, this can also be significant, depending on the context in which the claim is brought. If it is brought during the course of an individual's employment, then financial damages are likely to be fairly limited but if it is linked to a dismissal then the financial consequences can be huge because there is no cap on damages if a dismissal is linked to discrimination. So these could be really significant if the individual, for example, is a high earner or maybe a member of a defined benefit pension scheme.
Emma: Thanks Alice, so it sounds like there are some quite tricky issues for employers to grapple with. What advice can you offer employers to help them avoid falling into the trap of writing a discriminatory dress code?
Alice: The key to avoiding negative publicity and avoiding these kinds of claims is to be even handed. Think about what your dress code is trying to achieve. For example, do you need a professional image or are there minimum health and safety requirements. Also, what is truly necessary in order to get you there? Do you need your employees to dress in a particular way and if so, why? Would you be embarrassed if your dress code or any part of it was published on the internet? Is there a risk of discriminatory treatment and is there anything that can be done to reduce the impact on particular protected groups?
Emma: Thanks very much Alice. If you would like to discuss any of the aspects of today's topics please do get in touch with Alice Loughney, she would be delighted to help you.
Also, if you are interested in the two headscarf cases that Alice mentioned then Partner Jane Fielding and Senior Associate Vivienne Reeve have also discussed these cases in another earlier podcast which is also available on our website.