There has been increasing press coverage criticising employers’ dress codes, for example requiring female employees to wear high heels.
In the recent British heat wave, a male employee hit the headlines after he was sent home for violating his employer’s dress code by wearing a pair of shorts to work. The employee in question returned to work wearing a dress, in a bid to prove his assertion that by prohibiting male employees from wearing shorts in the hot weather, while female counterparts were permitted to wear dresses, the employer was discriminating on the grounds of sex.
There have also been reports of teenage boys in Devon wearing skirts to school to protest against their school’s ‘no shorts’ policy.
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This raises the question: are ‘casual’ or ‘dress down’ dress codes which prohibit the wearing of shorts discriminatory?
In summary, a dress code which has more stringent rules for men than women is arguably discriminatory on the grounds of sex. The same applies to dress codes which place employees of a particular religion or belief, or employees with a disability, at a disadvantage.
However, any employer that acts in an ostensibly discriminatory manner will have a defence if they can show their actions were a proportionate means of achieving a legitimate aim. This means, if the employer had prohibited the wearing of certain items for a specific business reason. Taking health and safety, as an example: prohibiting employees from wearing flip flops in a kitchen where knives are used would be justified and therefore a defence against any claim for indirect discrimination
In this instance, we understand that the employee was a call centre worker and was not client-facing. In such circumstances, it may be difficult to argue there was a legitimate reason for the ban on shorts which placed male employees at a disadvantage during the high temperatures experienced across the UK. This is an important reminder to employers that, when drafting or updating a dress code policy, it is good practice to consider the reasoning behind any requirements placed on employees.
We set out below some practical, key points for employers to bear in mind when drafting or updating their dress codes.
Dress codes: Key points for employers
- Dress codes will be affected by the nature of the business, any specific health and safety hazards presented in the workplace, any requirements to wear a uniform and the level of client contact employees have.
- Employers must avoid unlawful discrimination in any dress code policy. This includes discrimination on the grounds of sex, religion and disability.
- While it is permissible to have different rules for men and women, the rules should not be more stringent for one group than another.
- Employees should be permitted to wear clothing that manifests their religious faith. If they are permitted from doing so, employers will need to have an objective justification for banning such items and ensure they are not indirectly discriminating against these employees. The case law on this area is developing and there have been conflicting findings of the European Court of Justice. We advise employers to think about how they can work with employees to allow them to manifest their faith in a way that does not conflict with the needs of the business or health and safety requirements, rather than providing a very strict and limiting dress code.
- Reasonable adjustments must be made for disabled people when dress codes are in place.
- Consulting with employees over any proposed dress code may ensure that the code is acceptable to both the organisation and employees. Once agreed it should be communicated to all employees.