An Employment Tribunal (Tribunal) has ruled against a nursery worker who was told off by her employer for wearing a dress that showed too much cleavage.
Ms Latika Lawrence (the Claimant) worked as a nursery nurse at Bundles of Joy Day Nursery in Streatham, South London, where all staff members were required to wear a ‘conservative’ uniform, which included a pink polo shirt, black trousers and flat shoes.
When Ms Lawrence began work for the Nursery there were no polo shirts available in her size (the Nursery would order the shirts in batches as this reduced the overall cost), so she instead wore a figure-hugging black dress that had a scooped neckline.
When a council specialist visited Bundles of Joy Day Nurser at the beginning of 2019, they advised the owner, Ms Zara Ahmed, to speak with Ms Lawrence about the dress due to the amount of visible cleavage and that this was “unprofessional in a nursery environment”.
Ms Ahmed informed Ms Lawrence in a meeting that the dress was too low-cut and that it could cause offence. The Claimant raised a grievance as a result of the meeting and then resigned from her position at the Nursery in May 2019. As a consequence of her grievance, the Claimant said that her working hours had been reduced but after she raised this issue the rota was amended (to her normal number of hours).
During the Tribunal proceedings, it was said that the dress could be more or less revealing dependent on what activities the Claimant was involved in with the children. The Tribunal also heard that Ms Lawrence had ‘large breasts’ and wore large or extra-large clothing but that her “build is far from unusual and well within the normal range”. CCTV images of the Claimant wearing the dress were also shown to the Tribunal which confirmed that the outfit was figure-hugging.
Further, Ms Lawrence told the Tribunal that the meeting was not in private due to the fact that the doors of the meeting room were open. In response to this claim, the Nursery said that the children were napping at the time the meeting took place.
The Tribunal’s decision
The Tribunal dismissed Ms Lawrence’s claim for sex discrimination as the actions of the Nursery and its dress code were “not discriminatory between men and women” as the same standards would apply to a male worker.
In the Tribunal’s judgment, Judge Dyal commented:
“The dress code itself was not discriminatory between men and women.
“The actual uniform was gender neutral and in our view the respondent would have applied the same standard to departures from the actual uniform (when employees wear their own clothes) whether dealing with a man or a woman.
“The standard was to dress conservatively and without exposing bodily flesh that would be inconsistent with conservative dress.”
Additionally, the Tribunal found that Mrs Ahmed, during her meeting with the Claimant, had actually said that she had ‘too much breast on show’, which was ‘entirely reasonable’ in the circumstances.
When an employer is considering drafting and enforcing a dress code policy, due regard should be given to ensuring the policy does not inadvertently lead to the less favourable treatment of employees with one of the protected characteristics, such as sex, religion or belief. This can be avoided by ensuring the policy applies equally to all employees. It is also good practice to consult with employees before issuing or updating a policy to ensure it will have wider acceptance amongst the workforce.
It is also important to note, that if you have an employee who is not adhering to the dress code, the way in which issues are raised with the employee is of paramount importance. As with most matters of a sensitive nature, dealing with the issue on an informal basis, to begin with, and in a private and discreet manner, will often render an employer’s actions as reasonable in the circumstances and prevent violation of an employee’s dignity.
For tips on creating or updating a dress code policy, have a read of this article.
How Nelsons can help
For further information on the subjects discussed in this article or any related subjects, please contact Amir or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.Contact us