Introduction
There are no specific laws governing what an employee should or should not wear at work (aside from health and safety requirements where applicable) and, in general, an organisation has discretion in applying policies on work wear which set out standards of dress and appearance appropriate to the organisation.
However, while courts and tribunals have recognised that it is a legitimate aim to require certain standards of appearance, the imposition of such standards can give rise to claims of unlawful discrimination on various grounds including sex, religion, disability or gender reassignment.
When setting out rules or policies which lay down what the acceptable and unacceptable standards of dress are, an organisation must have regard to the reasons for their requirements and be aware that this may cause conflict if issues of culture and diversity are not taken into account. Employers must be prepared to balance their business interests with the freedom of the individual.
Before deciding what type of dress and standard of appearance is acceptable, the employer should ask themselves whether the standard required is:
- because of the employee’s role in the organisation, for example, front facing to customers;
- for hygiene reasons (for example, in food processing) or for health and safety reasons;
- to raise uniformity and consistency of dress, for example, to promote a corporate image;
- to dissuade employees from dressing inappropriately or unsuitably for a work environment; or
- to ensure employees present themselves in a manner which is clean and acceptable to others within a working environment.
If the answer to one of more of these questions is yes, then the employer may have a potentially justifiable requirement and it is advisable that a policy is introduced to give clear guidance and unambiguous rules on what is or is not acceptable. A breach of the rules may then be dealt with as a disciplinary issue. A model dress code can be found by downloading our dress and appearance policy.
However, employers need to bear in mind a number of pitfalls in trying to enforce, or even dismiss for failure to follow their dress code rules. Dismissals can be unfair or even discriminatory if the employer enforces unreasonable rules on an employee.
Contractual rules
As with all contractual requirements, employers are advised to ensure that dress rules are in writing and, if possible, contained as a clause within a contract, especially if a breach of the rules may lead to dismissal. For example, if an employee is required to wear a specific uniform, this should be incorporated into the employee’s statement of terms and conditions. However, even standard issue uniforms may need to be adapted if they do not allow individuals to conform to their own standards of cultural or religious appearance.
Employees who ask for a variation to the uniform should be considered sympathetically and, where possible, allowed to make a variation if this does not result in any major detriment to the employer or compromise health and safety to a significant degree. For example, an employer who dismissed a male employee for refusing to have his hair cut was found to have acted unfairly as it did not cause the employer any detriment and the tribunal said the employee was entitled to determine for himself the length of his hair.
Some rules may be implied through custom and practice (for example, senior male staff employees wearing ties) or by common sense (not wearing swim wear to work unless you are a life guard in a pool!) as to what is suitable and appropriate to the work environment.
Uniforms and corporate work wear
When deciding what dress code is appropriate, an employer needs to consider the type of organisation they operate and whether the image is consistent with their operation. Clearly imposing strict rules of dress in some environments will be less applicable than in others. For example, clothing rules for serving in a shop may be different from those required in a professional office or, conversely, from those suitable for minding children in a nursery. If an employer can demonstrate that inappropriate clothing may alienate customers or damage their image/reputation, they may be more successful in enforcing stricter rules.
Employers are likely to be able to forbid any type of clothing or accessory that may cause offence to other employees, customers or members of the public, such as inappropriate t-shirt slogans, badges or unsuitable work wear. For example, a tribunal found that a male employee wearing very short running shorts in an office environment was by common sense wearing unacceptable clothing. Stringent standards may be more difficult to enforce if the employee works alone or out of public view and this should be taken into account by the employer.
Many employers in sectors such as retail or service industries are likely to want their employees to wear a uniform and, generally, this type of requirement will be accepted as necessary to either project a consistent company image or to ensure that employees are readily identifiable. Failure to follow uniform rules may generally be dealt with by issuing warnings in line with disciplinary procedures and patterns of non-conformity can build up a case that the employer may later rely on.
Safety requirements
The need for employees to wear suitable protective clothing and equipment will usually be upheld by the tribunals, but it is still important to investigate carefully any complaints or issues with wearing the uniform and make adjustments, if necessary and practicable. For example, wearing standard issue safety shoes for employees with diabetes may be impractical and flexibility in style/source may have to be considered (this will of course also be a disability issue). Similarly, if safety goggles cannot be worn over glasses, an investigation would need to take place to see if alternatives were possible without compromising safety.
Exemptions are in place for Sikhs who do not have to wear a safety helmet on a construction site, unless there are reasonable grounds for believing that the employee would not wear his turban at all times whilst on the site. Other working environments do not carry this exemption and if the employer has a justifiable need to enforce the wearing of a hard hat, such as in a steel works, the health and safety considerations will override any potential discriminatory effects.
Sex discrimination
In general, rules should not be applied to only men or women on the basis of their sex, unless there is a logical reason for doing so. Such rules could lead to claims of direct discrimination on the grounds of less favourable treatment. However, having different requirements for men and women in a dress code will not amount to sex discrimination where the dress code applies a conventional standard of appearance and, taken as a whole rather than item by item, neither sex is treated less favourably. For example, ties are widely accepted as providing a level of smartness for male employees doing certain jobs, but if you insist on men wearing ties, a similar standard of formality must be applied to women’s dress. Equally, it is likely to be difficult to ask women to avoid wearing trousers, although it would be possible to ban both sexes from, for example, wearing trainers or jeans.
When looking at whether any discrimination might arise from a dress code, the employer can look at the rules “in the round” rather than on a garment-by-garment basis, as it is recognised that there are conventional modes of dress for each sex and these are not of themselves discriminatory. This may lead to Tribunals accepting that hair length and the wearing of jewellery may be different applied to men and women. A requirement by an employer for men to have hair “not below shirt collar length” which did not apply to women has been held to be lawful in the context of the dress code as a whole. By contrast, a woman who was dismissed from her job as a waitress for refusing to wear a low cut top succeeded in claiming sex discrimination, a man would not be required to wear an equivalent uniform.
A poorly applied policy can cause bad publicity as well as having legal consequences. An employer who sent a female receptionist home for refusing to wear two to four inch heels was the subject of a Parliamentary debate, an on-line petition signed by 100,000 people and considerable press coverage. The company involved has changed its dress code.
Not all rules applied merely because they are “conventional” will succeed if they are unjustified. If one sex is treated on a more restrictive basis overall than the other sex, this may cause difficulties. Trivial or minor differences are unlikely to be problematic, for example, requiring female employees to wear a corporate scarf instead of a tie.
Transgender people will have the protection of legislation if they choose to present themselves wearing clothing of the opposite sex either before or after they have undergone gender reassignment. In order to qualify for this protection, however, the individual must have more than a desire or wish to change sex, but must be intending to commence the process of gender reassignment under medical supervision. In contrast, a tribunal found that a male transvestite who attended work in women’s clothing was not discriminated against when he was banned from wearing female clothing at work as the employer would have applied the same rule to female employees wearing male clothing.
Discrimination on the grounds of race or religious belief
Employees from some ethnic groups may have to observe fairly strict religious or cultural requirements in their mode of dress/appearance. For such employees, an employer will need to be sensitive to these requirements and, if possible, ensure their dress code does not conflict with them, thereby running the risk of a discrimination claim. For example, Muslim females may not be allowed to have bare arms, legs or head and Sikh men may have to wear a beard and turban. Employers should also be vigilant to stop any harassment which may arise from other employees making derogatory remarks about modes of dress which may have cultural or religious significance.
Indirect race discrimination arises when an employer applies a criterion or practice generally, but it affects a particular ethnic group to its detriment usually because they cannot comply with the criterion or practice. In relation to dress codes, this could arise if an employer forbade the wearing of turbans. If an employee could not comply with this because of their religious beliefs and they suffered a detriment, for example, losing their job, a claim of indirect discrimination may succeed.
Some rules which fall into this category may nevertheless be “justifiable” if there are non-racial grounds for imposing the rule, such as health and safety requirements, hygiene factors or other significant factors.
For example, in a case where a Muslim teacher wished to wear a veil at work, the employer was able to justify its refusal on the ground that teachers or support workers wearing a veil in the workplace prevented effective communication with the children.
If the dress code is only designed to uphold a company image, this may not be sufficient to warrant the imposition of such a rule which causes a detriment to some groups.
How to handle appearance issues
If an employee is breaching company rules on dress and appearance, the first step should be to discuss the issue with them and remind them of the rules which are in place. It is important that the employee is given an opportunity to explain why they are breaching the rules and the employer should consider whether any assistance or adjustment to the rules is required. Employers should take care if they impose dress codes which are potentially expensive to employees and be prepared to offer assistance or accept a suitable compromise if possible (for example, an alternative supplier of clothing). If there is no credible reason, the employer should use their normal disciplinary procedure and warnings can be issued. Where possible, adequate time should be given to the employee to comply with the code and consequences of a continued failure to comply pointed out to the employee.
How to handle personal hygiene issues
Occasionally, employers find themselves having to confront an employee with unacceptable body odour and poor standards of dress and personal hygiene. These cases are often brought to the attention of management by complaints from colleagues and it is important to try and deal with the problem promptly, but in a way that treats both parties even-handedly. The following steps may be helpful:
- Arrange to meet with the employee and emphasise that the conversation is strictly confidential. It may be more appropriate for a member of the same sex to hold the conversation.
- Be clear about what the problem is, but avoid saying that others have lodged complaints as this may make it difficult for the employee to return to their workplace.
- Ensure that the employee is aware of and has a copy of the company’s dress/appearance policy, if available.
- Enquire sensitively if the employee is aware of any cause of the problem, e.g., an underlying medical issue, and stress that the purpose of the conversation is to seek solutions and improve the situation.
- Discuss together ways of making improvements and suggest ways of assisting the employee, if appropriate, such as access to changing/washing facilities.
- Ensure the employee understands the impact that failure to improve will have on working relationships in general and specify to the employee what they need to do and by when.
- Hold review meetings to monitor the situation.
If, despite counselling, the employee does not improve, or improves and then lapses, you can consider using the disciplinary procedure.
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