Why have a dress code?
It is common for an employer to insist on a certain type – or standard – of dress from its employees. Workers may be asked to wear a uniform to conform to a particular corporate image or, more practically, to ensure that they are easily recognisable to the public.
Other employers expect employees to adhere to a standard of dress to give an impression of professionalism. Sometimes a dress code is necessary for health and safety reasons: for example, health care workers are often forbidden to wear long sleeves or jewellery.
How detailed a dress code should be is likely to depend on the employer's business, any health and safety concerns, and customer contact. Acas has recently issued new guidance for employers who want to know how far they can go. What does this say, and how helpful is it for employers?
Discrimination and dress codes
An employer considering a dress code must keep the danger of discrimination claims in mind. Not every difference in treatment is less favourable treatment: as the case of Smith v Safeway (1996) demonstrated, men and women can have different uniforms but the the standards set should be equivalent to avoid discrimination.
Smith v Safeway (1996)
Mr Smith was employed by a supermarket with a dress code which required all employees to dress in a smart and conventional way, because the employer believed that how staff looked could either repel or attract customers. He was dismissed because his hair was too long. The Court of Appeal held that the code was not discriminatory as a code introduced for the purposes of requiring conventional appearances for male and female employees (even if the detailed rules were different), and applied even-handedly, did not amount to sex discrimination.
However, the tribunal case of Smith v Rees (2012) demonstrates when different rules can become less favourable treatment. In that case, a waitress was given a uniform which included a blouse she felt was too low, too tight and which showed too much cleavage. When she refused to wear it, she was dismissed for being "a prude" – but she was successful in her subsequent discrimination claim when the tribunal held that no male employee would have been expected to wear a uniform of a similar standard.
Some employees wear particular items of clothing for religious reasons. Employers should be cautious of discrimination where those items manifest employees' religious faith.
If there is a reason for the banning of certain types of dress, this must be justified by reference to a real business or safety requirement. Acas says that employers should think about how they can work with employees to allow them to manifest their faith in a way that neither conflicts with the employer's business image or other (such as health and safety) requirements, without resorting to a strict and limiting dress code.
Azmi v Kirklees (2007)
Mrs Azmi was a member of the teaching staff at a school, who asked to wear a niqab if working with male teachers. Her employer considered her request and concluded that it was not possible to segregate male and female teachers (so that she would not be placed in a position where she would want to cover her face) and that being able to see her face was an important part of her effective communication with children whilst working. She was suspended when she refused to work. The Employment Appeal Tribunal held that she had not been a victim of discrimination – the school's ban on the veil whilst she was in contact with children was a proportionate means of achieving a legitimate aim (that of aiding the children's learning by ensuring effective consultation) and had been put in place only after careful consideration (including observing Mrs Azmi at work both with and without her face covered, and permitting her to wear her niqab at other times).
The Azmi case was an example of how religious dress could prevent the proper carrying out of the employee's duties and how, in those circumstances, employers are within their rights to require employees to dress in a certain way.
On the other hand, if employees can carry out their duties properly while wearing the relevant form of religious dress, it will not be possible for an employer to refuse to allow them to wear it without being at risk of a successful religious discrimination claim.
What about religious items such as crucifix necklaces? Last year this question reached the European Court of Human Rights and this led to guidance from the Equality and Human Rights Commission on the topic.
Eweida and Chaplin (2013)
Two employees, one who worked for British Airways in a client facing role, and a nurse, both brought claims that they had been discriminated against because of their religious beliefs when they were prevented from wearing crucifix pendants at work. The European Court of Human Rights (ECHR) drew a distinction between the two cases.
Ms Eweida, who worked for British Airways, wanted to wear a cross visibly to bear witness to her faith. BA's refusal to allow her to do so because of their ban on visible jewellery was an interference with her right to manifest her religious belief. The ECHR held that too much weight was put on BA's desire to promote its corporate image since the necklace was discreet, did not detract from her appearance, and there was no evidence that authorised items of religious dress such as turbans or hijabs affected the brand.
On the other hand, the reason for Mrs Chaplin's employers' restriction on jewellery at work (including religious symbols) was to protect the health and safety of nurses and patients. This reason "was inherently of a greater magnitude" than that of BA and the ban was upheld.
An employer in that situation has the unenviable task of balancing the interests of the employee and with its own business reasons. In practice, employers will usually have to accommodate a request unless there is a reason not to – for example, cost and disruption, the extent of the disadvantage to the employee, the impact on customers or other employees, and health and safety. As a result, it may be lawful for example to prevent those in health care roles not to wear a kara bracelet if there is a "nothing below the elbow" dress policy and there is no other way to reduce infection risks. On the other hand, British Airways' ban on crucifix pendant necklaces could not be justified (and the airline later changed its policy).
Tattoos and body piercings
Tattoos and body piercings are becoming more common, especially amongst younger workers, but some employers believe visible piercings and tattoos on their employees damage the image of their organisations, especially if they are dealing with customers. Despite what some people think, it is not unlawful for an employer wishing to promote a certain image through their workers to remove piercings, cover tattoos, or even (unless for a discriminatory reason, for example refusing to employ tattooed women) not to hire individuals in the first place. Last month a consultant learned that the hard way when she was dismissed for getting a tattoo on her foot.
Acas says that employers should carefully consider the reason behind the rule as they should have sound business reasons for requiring these dress codes. If an employer does decide to adopt a dress code or appearance code it should be written down in a policy which should be communicated to all staff so they understand what standards are expected from them.
Good practice for employers
- Consider the reasoning behind any dress code. Do you have a good business reason for it?
- If introducing a dress code, consult with employees and then communicate the final policy clearly
- Dress codes can apply different rules to male and female workers, as long as standards are broadly similar and there is no less favourable treatment
- Take into account any employees who dress in a certain way for religious reasons: however, health and safety concerns can justify the banning of particular items (eg loose fitting clothing around machinery)
- Be prepared to consider reasonable adjustments for employees with disabilities
- Provide a way for workers to appeal against a decision not to allow them to wear particular dress or attire
- Keep your dress code separate from the health and safety policy on protective clothing
- Apply your dress code consistently.
- Be clear that failure to comply with the standard set may result in disciplinary action
- Be proactive: address any problems at the earliest opportunity with the employee. The longer you leave it, the harder it will be to show that your concerns have merit.