Key Points for employers with dress codes
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Employers must avoid unlawful discrimination in any dress code policy in respect of the protected characteristics in the Equality Act 2010. For example, ACAS advises employers to give thought to how they can work with employees to allow them to manifest their faith in a way that does not conflict with the employer’s image, or health and safety requirements, rather than provide a very strict and limiting dress code.
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Where employers cite health and safety reasons for the dress code, the relevant health and safety reason should be clearly identified and communicated.
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Dress codes must apply to both men and women equally (e.g. “smart/business dress” would avoid discrimination claims, but employers should not require “gender-specific” items of clothing to be worn by women only such as skirts, high heels, or cosmetics as this would amount to direct discrimination), although they may have different requirements which provide for an "equivalent level of smartness" i.e. they need not be identical.
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Reasonable adjustments must be made for disabled people when dress codes are put in place.
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Whilst, for example, a “no tattoo” policy would not be discriminatory (as it is unlikely, for example, that staff would have tattoos for religious reasons), in terms of staff morale, ACAS reports that some employers have started to reconsider their strict "no tattoo" policies following media reports and online petitions. Clearly, employers may be inclined to introduce a more relaxed dress policy for employees who do not have face to face client contact or are not “front-of-house” workers.
Whilst employers would hope that employees are able to apply common sense concerning what amounts to acceptable dress for the workplace (and vice versa), most employers do have a written dress policy to make clear the standards expected. Last year, the government issued guidance for employers on how they can ensure dress codes are not discriminatory. This non-legally binding guidance was issued in response to a Government inquiry following a rather bizarre and highly publicised incident whereby a receptionist working for an agency that supplies front of house and reception services to PricewaterhouseCoopers was sent home without pay by her supervisor for wearing flat shoes, rather than high heels in breach of their “personal appearance guidelines”. In response, rather than bring a tribunal claim, the receptionist set up an online petition, which ultimately resulted in the Government publishing dress code guidelines. Clearly, this was terrible PR for the work agency in question and would have amounted to direct discrimination on the grounds of sex, as there is no equivalent type of foot wear which an employer would impose on male staff. The requirement may also amount to indirect discrimination against employees with a disability that affects their mobility (i.e. it would be a “provision, criterion or practice”, that it is almost certain employers would not be able to justify as being proportionate to their intended business aim where the requirement to wear business shoes, regardless of heel size, would suffice). It may also amount to a breach of the implied duty of trust and confidence for female staff creating the risk of constructive dismissal claims and obvious reputational risks for the employer (not many staff start online petitions, but the use of social media for venting workplace grievances is not uncommon).
Last month, in another dispute involving a staffing agency, the employment tribunal found that the agency’s blanket ‘no beards’ policy indirectly discriminated against a work seeker seeking work in the hospitality sector who was a practising Sikh and unable to shave his beard for religious reasons. He was told by the agency that “as they were working with 5* Hotels” the hotel managers won’t allow having facial hair due to health and safety/hygiene reasons, whereas if they worked with hotels “at a lower star ratings” facial hair “wouldn’t be as big of an issue”. However, the agency’s policy made it clear the prohibition on beards and goatees was due to requiring a smart personal appearance. The work-seeker brought a claim against the agency, arguing that the ‘no beards’ policy amounted to indirect discrimination on religious grounds. The tribunal agreed. It held that the ‘no beards’ policy was a “provision, criterion or practice” for the purpose of the Equality Act 2020 that placed Sikh workers at a disadvantage. The tribunal accepted that the policy had a legitimate aim of seeking to comply with client requirements. However, the blanket ‘no beards’ ban was not justified as a proportionate means of achieving that aim. There was no evidence that the agency had asked the client whether they would make an exception for a Sikh worker i.e. that they had tested each client’s requirements. Furthermore, not all of the agent’s clients had a strict ‘no beards’ policy. The tribunal found that the very significant impact on the work-seeker (and Sikhs generally) of not being able to take up employment with the agency was not justified by the legitimate aim of maintaining high standards of appearance. The tribunal commented that a more proportionate response would have been to agree to take on the worker and to address the clients’ requirements on a case-by-case basis.
A compelling health and safety requirement will always trump any appearance or clothing requirement from a religious perspective, but clearly the agency had not established a genuine health and safety reason on behalf of their clients for their workers to be clean shaven in this case. Employers should tailor their dress policies and rules on personal appearance to meet their genuine business and health and safety requirements.
As always, if you have a legal query please get in touch with the FSB Legal Helpline on 0345 0727727 and we'll be happy to assist you.