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5th June 2018

Legal Issues – Dress codes

The issue of dress codes came to the fore in May 2016 when a female worker was sent home from her first day working for PricewaterhouseCoopers (PwC) because she wasn’t wearing high heels.

The worker in question, Nicola Thorp, was actually supplied by a staffing agency called Portico, which had a highly detailed set of rules outlining requirements on everything from the opaqueness of tights to the colour of nail polish. At the time, it required females to wear heels between two and four inches high.

However, despite PwC not being the employer, its own dress code was similarly prescriptive and it was involved in the decision to send Ms Thorp home for not wearing heels of a certain height. A petition from Ms Thorp ensued and the media had a field day, neither of which were beneficial to PwC’s global reputation.

Both Portico and PwC have since amended their dress codes, but the subject has continued to attract national interest. As such, the government became involved and established its own enquiry in 2017. That enquiry has resulted in the government issuing new guidance on dress codes and their potential to be discriminatory or harassing.

The new guidance in some respects doesn’t add much to the discussion, in the sense that it uses language such as ‘best to avoid’ and states that requiring employees to dress ‘provocatively’ is likely to be unlawful, which is already rather obvious.

It does have some useful tips however, such as stating that dress codes needn’t be identical provided that they impose similar standards, such as a requirement to dress smartly. Employers can therefore continue to ask men to wear a shirt and tie, as long as women are required to wear a similar style of attire.

On that point, the guidance states that both women and men should be allowed to wear trousers, but makes no mention of men being able to wear skirts. It may seem unlikely for such an argument to be made, but if a male were to wear a skirt his employer may have a difficult situation on its hands if it were unhappy with the man’s choice of workwear.

The guidance discourages employers from setting rules in relation to makeup, skirt and hair length or particular tights or stockings, as doing so is likely to be beyond the boundary of lawfulness.

The government has also included some tips in relation to transgender employees, advising that they should be allowed to wear clothing that matches their gender identity. In other words, requiring a transgender employee to dress in the style of the gender that they do not associate with is likely to constitute discrimination.

The guidance refers to the wearing of religious symbols, stating that employees should be allowed to do so if it doesn’t interfere with their work. The government was no doubt swayed in that regard by the case of Nadia Eweida, who argued successfully before the European Court of Human Rights that the UK had failed adequately to protect her right to manifest her religion when she had not been allowed by her employer to wear her silver cross on display around her neck. Of course, if wearing such jewellery could present a risk such as to health and safety, for example in a hospital or prison setting, an employer may still be able to reasonably prohibit employees from wearing it at work.

Conversely, the guidance is silent on the issue of other religious clothing such as headscarves. That may be because the case law on that point has been arguably contradictory, even at the level of the European Court of Justice (ECJ).

For example, in Achbita v G4S Secure Solutions, the ECJ found that the employer’s ban on the wearing of headscarves was not direct discrimination because it applied to all employees and was based on the employer’s policy of religious neutrality. However, in Bougnaoui v Micropole SA, the ECJ held that that employer’s ban on an employee wearing a headscarf was directly discriminatory because it was imposed followed a complaint from a customer.

The ECJ clearly felt comfortable in using the reason for the ban as the distinguishing factor between those cases, but it is debatable as to whether there was a distinction in reality, especially if one considers that the first employer’s policy of religious neutrality could have come from customer complaints.

In summary, the government’s new guidance doesn’t introduce a whole new set of rules on what employers can and can’t require employees to wear. It does however provide some useful tips and points to bear in mind.

Of course, as with so many things in law, what is fair and reasonable will likely depend on individual circumstances, and perhaps the best lesson to take from the government’s guidance is that dress codes should be tailored to individual organisations following discussions with employees and/or groups such as trade unions.

Asking employees for their thoughts on a dress code is likely to give you helpful insights as well as reduce the risk of complaints or claims.

If you have any questions on any of the issues raised in the above article, such as in relation to your own dress code, please contact Seanpaul McCahill.

5th June 2018