Employers frequently require employees to comply with dress codes or appearance requirements due to professional image or health and safety requirements. Although the Courts have recognised this to be a legitimate aim, employers must be alive to the resultant potential risk of a claim for unlawful discrimination, particularly on the grounds of sex, religion, disability or gender reassignment.
Employers are legally entitled to have differing dress code requirements in place for men and women. This will not amount to sex discrimination, provided that the dress code in question applies a conventional standard of appearance and does not treat one gender less favourably than the other.
Issues can also arise from dress codes in regard to gender reassignment or religion. Dress code requirements can be indirectly discriminatory where they restrict an employee’s right to wear an item associated with their religious beliefs, or where a transsexual person is prevented from wearing a skirt when other women are permitted to.
Employers must also bear in mind that if a dress code requirement puts employees with a disability at a particular disadvantage compared to a non-disabled employee then they will have a duty to make reasonable adjustments to seek to remove the disadvantage.
Case Law
Glaswegian teenage Erin Sandilands has recently attracted a great deal of media attention after she was dismissed following her refusal to wear a skirt and makeup during her shifts. Erin was employed as a waitress by Cecchini’s Bistro. At the commencement of her employment in September 2015, Erin was informed that the dress code to be adhered to was simple black trousers or a skirt and a black shirt. However, one month later, she was told by the restaurant manager to start wearing makeup, wear her hair loose and wear a skirt instead of trousers so that she was ‘easier on the eye’ and looked more attractive and feminine ‘for the punters’.
Erin complained, contending that she dressed smartly and in accordance with the company dress code. She asked how her appearance affected her duties, and pointed out that it was in fact more hygienic for her to wear her hair tied up as she was handling food. The restaurant did not respond to this and dismissed Erin the following day on the grounds that she was no longer required, despite the restaurant having recently recruited new members of staff and increased employees’ hours due to them being so busy.
Erin felt humiliated and hurt by this, and brought a claim in the Tribunal.
Tribunal Decision
The Tribunal considered the facts of the case and concluded that Erin was discriminated against on the basis of her gender, stating that a male employee would not have been treated in the same way. The Tribunal also went further, finding that the restaurant manager’s conduct amounted to harassment and that Erin had been subjected to a ‘degrading and humiliating’ work environment. She was awarded £2,500 as compensation for the injury to her feelings and £1,060 in lost earnings.
The restaurant denied that the incident ever occurred and is expected to appeal the decision.
Comment
This case follows a string of others, including the receptionist who was sent home for refusing to comply with a dress code requiring her to wear high heels and the Canadian waitress whose bloodied feet went viral on social media after she was forced to wear high heels for her long shifts.
Although employers can argue the defence that the requirement of the dress code is a proportionate means of achieving a legitimate aim, balancing the importance of the employer’s aims in having a dress code against the impact on the employee, it is imperative that employers ensure they adopt an even-handed approach and take care to make certain that dress code requirements are not more onerous on a certain group of people.
Generally, the more flexibility an employer can offer whilst still achieving its objectives, the less likely it is that there will be an issue.
For more employment law advice or to comment on this article, please contact us to speak to a member of our employment law team.