Can requiring an employee to wear a collar and tie or a skirt give rise to legitimate employee complaints?
Is there a requirement for your male employees to wear a shirt and tie? Do your female employees have to wear skirts? If so, you could be running the risk of discrimination claims.
Recent case law
In a recent high profile sex discrimination claim, an employee in a Jobcentre at Stockport, claimed that the introduction by his employer of a standard dress code requiring men to wear a collar and tie at all times was discriminatory as the code included no similar clothing requirements for women. The claim of sex discrimination was successful on the basis that the requirement to wear a collar and tie was gender-based and there were no items of clothing that were imposed on women in the same office.
General law relating to dress codes
A dress policy may give rise to complaints of sex discrimination on either of the following grounds:
- it discriminates directly on the grounds of sex (i.e. by treating an employee less favourably on grounds of his or her sex than a person of the opposite sex either has or would have been treated);
- it discriminates indirectly on the grounds of sex (i.e. it is to the detriment of a considerably larger proportion of either men or women, which cannot be justified irrespective of sex and which is to the detriment of the unfavourably treated group).
Direct sex discrimination could arise, for example, if female employees were not allowed wear trousers. Examples of indirect sex discrimination are less likely to arise. However, in the context of race discrimination, a neutral dress requirement, applicable to all employees, could run counter to the cultural norms of a particular ethnic group. For example a 'no hat' rule could be indirect discrimination against a Sikh employee.
The implications for dress codes…
All of the above does not mean that it is now impossible for employers to require men to wear a collar and tie at all times. However, employers must ensure that male employees are not treated less favourably than female employees, and vice versa. To overcome this issue, a requirement for women to wear a smart blouse and jacket is a suggestion, as an employer could then argue that there is no discrimination as both sexes would be subject to equivalent standards of dress.
…and all aspects of appearance.
In the context of dress codes, the requirement to ensure all employees are treated consistently is not limited to dress, but also applies to other aspects of appearance, for example hair and jewelry.
Conclusion
The golden rule is to treat all employees according to the same standards. A requirement for all employees to dress 'smartly' would not be regarded as discriminatory because all employees are subject to the same restrictions.
