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Costume Drama: Getting The Right Balance On Dress Codes

As you may have gathered from the endless shop displays of pumpkins and cobwebs, today is Halloween; which means that when we leave our office on Hampstead High Street this evening we will be confronted with a host of witches, zombies and vampires. And their kids will probably ask us for chocolate! It is the one day of the year when adults can dress in crazy costumes without either being a member of Fathers 4 Justice or asking for a charitable donation. But whilst some people may be wearing a wig or a cape today, in most offices the dress code will probably be far more sober.

Earlier this month, a trainee solicitor at a large city law firm was required by his bosses to remove his fashion blog warning new recruits not to wear red bras and short skirts. Sadly for his managers, who felt the blog contained “misplaced humour” and deemed it to be too “racy”, the blog was seen before it was taken down and became a viral hit. The suggested “dress code” for men and women, which was not a formal code of the firm, was soon appearing in every major newspaper in the UK, with focus on the humourous snobbery of comments such as “black is only for funeral attendees and bouncers” in respect of men’s suits and “do not wear a coloured shirt with a contrasting white collar. You are not an estate agent from Chelmsford.”

In truth, whilst the tone may have been unprofessional, the advice on this trainee’s blog was accurate but would usually go unsaid. Many professionals are required to look smart, and with high value clients the first impressions can count for a lot. It is for this very reason that many employers will have a formal dress code policy in place. This may be limited to a brief comment on ensuring that all staff look suitably well-groomed, or a uniform that needs to be complied with to the letter. However, the more prescribed a dress code is, the more careful the employer needs to be in drafting it.

The most common and potentially damaging risk in implementing a dress code is the potential to discriminate, be it on the basis of sex, race, religion or indeed any other protected characteristic. There have been a number of high profile cases reported in the press regarding uniform or dress codes: the British Airways air hostess asked to remove her crucifix necklace; the Muslim teacher who was required to remove her veil whilst teaching; the male employee required to wear a suit and tie whilst his female colleagues were told simply to exercise their discretion and "dress appropriately".

When drafting a dress code policy, employers must be sensitive to their staff but should also balance this against the needs of the business, its client and the public. Health and safety requirements may take precedence, as in the case of the Amritdhari Sikh prison officer who was not permitted to wear a kirpan (similar to a knife and one of the ceremonial articles of faith) as the bladed instrument could potentially end up in a prisoner's hands and cause significant harm. Although the prison officer took his employer to the Employment Tribunal over the policy, the Tribunal determined that the employer's actions were an appropriate, necessary and proportionate means of achieving a legitimate aim. This meant that although the policy indirectly discriminated against Sikhs by not permitting them to wear items required by their faith, the employer could justify, and therefore had a defence in respect of, the discrimination.

This defence is only available for indirect discrimination, that is to say a policy, criterion or practice which places certain groups at a disadvantage due to their protected characteristic. Direct discrimination, being the less favourable treatment of an individual on the basis of their protected characteristic, can not be defended in the same way. Real thought must therefore be applied to why the policy needs to be in place in the first place, and then also to the extent to which it is enforced. British Airways lost their case regarding an employee wearing a crucifix as they had failed to reach a balance between her religious beliefs and the company's corporate image, but a clinical nurse who brought a similar claim against her employer, an NHS Trust, was unsuccessful as the wearing of any necklace was not permitted for the protection of the health and safety of nurses and patients. Effectively, the need for the policy was greater in the latter case than in the former, and the restriction was a proportionate means of achieving a legitimate aim.

While it is permissible to have different rules for men and women, the rules should not be more stringent for one group than another. Providing a prescriptive requirement for a man to wear a suit and tie, but allowing women to select their clothing on the basis that they dress similarly appropriately, is permissible as long as the requirement is not more stringent on one group than the other. 

There have been a number of cases, both in employment and elsewhere (including schools), regarding dress codes and uniform policies, and many of the issues that arise in the future will need to be considered on a case-by-case basis. Employers should always have regard to possible religious sensitivities and gender equality when determining their dress codes, otherwise a dissatisfied trick-or-treater armed with eggs and loo roll will not be the last nasty shock they suffer.

This article was first published on 31 October 2013 as part of our Employment Law Update - October 2013. You can subscribe to receive these monthly updates by email. To join our mailing list, please email updates@solts.co.uk.