The Employment Appeal Tribunal (EAT) has ruled that a dress code policy which required a male police recruit to cut his long hair, when a female police recruit would not have been so required, did not constitute sex discrimination. The EAT also set out the factors for tribunals to consider when deciding whether or not a dress code is discriminatory on the grounds of sex.
This decision confirms that employers' dress codes can impose different standards of dress and appearance for men and women, provided that the dress code as a whole does not treat one sex less favourably than the other. However employers should be aware that the requirements of their dress code will still need to be justified by reference to current standards of conventional dress and the particular needs of the profession in question.
The next edition of The Works will feature an article looking at dress codes and what employers can do to avoid the potential claims that could arise from their enforcement.
In the case of Dansie v The Commissioner of Police for the Metropolis the EAT upheld an Employment Tribunal's decision that a male police trainee who was forced to cut his hair to comply with the police force's dress code, had not been discriminated against on the grounds of sex.
The police force's dress code policy states "hair must be neat, not allowed to cover the ears and….worn above the collar".
Mr Dansie had long hair and when he reported for his police training he wore it slicked back on his head and tied in a bun on the back of his head. However Mr Dansie was told to cut his hair and threatened with disciplinary action if he did not comply. Mr Dansie therefore was forced to cut his hair in order to avoid losing his job.
He brought claims of sex discrimination and sexual harassment on the basis that he was forced to have his hair cut. It was common ground between the parties that a female recruit would not, in similar circumstances, have been required to cut her hair.
The Employment Tribunal dismissed his claim on the basis that the law allows dress codes to be gender specific as long as it is "fair minded between the sexes and fits within the conventions of society and the needs of the profession in question".
Mr Dansie appealed. However the EAT dismissed his appeal and upheld the Employment Tribunal's decision. The EAT reviewed previous case decisions on dress codes and confirmed that when deciding whether they constitute sex discrimination the tribunals should consider the following:-
- That a difference in treatment between the sexes on a particular aspect of the dress code is not necessarily more favourable treatment of a member of one sex compared with a member of the other sex.
- In order to determine whether an employer treats members of one sex less favourably than the other, it is necessary to consider the dress code as a whole, even although a single provision of the code may upset the balance of treating the sexes equally.
- A Code which applies a conventional standard of appearance is not in itself discriminatory; looking at the code as a whole, neither sex must be treated less favourably as a result of its enforcement.
In Mr Dansie's case the EAT took into account that a female police recruit who failed to comply with a requirement of the dress code would have been treated in the same way as Mr Dansie and that the requirements of the police force's dress code were "necessary for this disciplined service".