Issues for employers when developing dress codes

There are several reasons why an employer may impose a dress code at work – whether it is to present an air of professionalism inside and outside the workplace or to make workers readily identifiable to customers. Health and safety is also a consideration: workers may be required to cover their hair in a kitchen for hygiene reasons or nurses ordered not to wear jewellery around patients on the grounds of safety.

It is at an employer’s discretion whether a dress code should be introduced and how strictly it is enforced, but there a number of legal considerations they need to bear in mind when implementing a dress code at work, as is highlighted in the ACAS guidance on the matter.

Equality Act 2010

An employer’s dress code policy must ensure it does not fall foul of the provisions of the Equality Act 2010 which protect workers from discrimination on the grounds of age, disability, gender reassignment, religion or belief, sex, or sexual orientation.

Failure to do so could lead to employee claims at an employment tribunal and, as we have seen from a number of recent high profile cases, all the associated cost and bad publicity that such cases generate.

Sex discrimination

To avoid sex discrimination claims, employers should ensure their dress code policy applies to men and women equally, although requirements can differ between the sexes: women can be required to wear ‘business dress’, for example, while it can be made mandatory for men to wear a tie.

A requirement for women to wear high heels to work has thrown into the spotlight of late after temp worker, Nicola Thorp, was sent home from work without pay from PriceWaterhouseCooper after she arrived in flat shoes and refused to comply with demands to wear high heels.
The ACAS guidance states that although staff can be dismissed for failing to comply with a dress code, employers should beware of operating a dress code in this manner. Any dress code should not be stricter, or lead to a detriment, for one gender over the other. Since wearing high heels can reportedly cause physical pain and even harm, forcing workers to wear them may lead to a successful claim of direct discrimination on grounds of sex.

Religious dress

Employers may want to present a religiously neutral front to avoid causing internal friction or risk offending customers of another faith. However, they should think hard before they introduce a blanket ban of all manifestations of religious faith, as the case law shows.
In 2013, the European Court of Human Rights (ECHR) ruled that British Airways breached an employee’s right to freedom of religion by firing her for wearing a crucifix at work. The Strasbourg court awarded Coptic Christian, Nadia Eweida, ˆ32,000 in compensation. Conversely, the ECHR ruled that Royal Devon and Exeter NHS Trust was within its rights to transfer nurse Shirley Chaplain to a desk job for refusing to remove a crucifix because health and safety considerations in wanting to prevent the spread of infections ‘was inherently more important’ and that the hospital was ‘well placed to make decisions about clinical safety’.

To avoid indirectly discriminating against employees on the grounds of religion, the ACAS guidance states that employers should allow groups or individual employees to wear articles of clothing etc that manifest their religious faith unless there is a real business or safety requirement to stop them. Employers need to justify the reasons for banning such items.

Displays of religious faith, such as the wearing of a discreet cross symbol to denote Christianity or wearing a Yarmulke or Kippah (skull cap) as part of the Jewish faith are in any case often not in conflict with a smart corporate image; employers should therefore consider how they can work with employees to let them manifest their faith in a manner that does not conflict with this image, or health and safety requirements, rather than inflict a strict and possibly discriminatory dress code.