what not to wear: dress codes and discrimination - employment webinar - james tait and sarah hooton...

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What not to wear: dress codes &

discrimination webinar – July 2016

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What not to wear

dress codes and discrimination

Connect with James

james.tait@brownejacobson.com

+44 (0)121 237 3999

Connect with Sarah

sarah.hooton@brownejacobson.com

+44 (0)115 976 6033

Have your say @brownejacobson

Dress codes –

why?

• to ensure that employees

are dressed smartly to

convey a corporate image

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Dress codes –

why?

• to ensure that a uniform is

worn

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Dress codes –

why?

• to comply with health and

safety requirements

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Dress codes –

why?

• risks?

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Equality Act 2010 Statutory Guidance

Any policy must:

– apply to all employees equally

– not adversely impact one protected group more than

others, unless justified as a proportionate means of

achieving a legitimate aim

• policy must be applied consistently

• difference in treatment will inevitably lead to a

challenge

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The starting

point - Smith v

Safeway (1996)

Different requirements for

men and women will not

amount to sex discrimination

if:

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The starting

point - Smith v

Safeway (1996)

• the dress code applies a

conventional standard of

appearance

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The starting

point - Smith v

Safeway (1996)

• taken as a whole, rather

than item by item, neither

gender is treated less

favorably in enforcing that

principle

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The starting

point - Smith v

Safeway (1996)

• approach should be

applied to both dress and

other characteristics such

as hairstyles

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Transsexual

employees

• dress codes should seek to

avoid gender stereotypes

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Transsexual

employees

• transsexual employees

may dress consistently in

accordance with their full-

time gender presentation

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Transsexual

employees

• transitioning employees?

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Religious clothing

• clothing may be associated with religious beliefs

• proportionate means of achieving a legitimate aim?

• need to balance employer’s aims in having a dress

code against the impact on the employee

• consider religious sensitivities when formulating or

enforcing a dress code

• ACAS guide on dress codes – “Employers are advised

to tread cautiously in this area…”

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Tattoos and

piercings

• approximately 1 in 5

people now have a tattoo

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Tattoos and

piercings

• 1 in 10 people are

believed to have a

piercing somewhere other

than their ear

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Tattoos and

piercings

• not a protected

characteristic – no

discrimination provided

policy is applied equally

to men and women

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Tattoos and

piercings

• religious tattoos or

piercings?

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Tattoos and

piercings

• customer facing roles only

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Hair, jewellery &

make-up

• distinguishing between

permissible length of hair

for male and female staff

is not discriminatory on

the grounds of sex

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Hair, jewellery &

make-up

• if working in food

preparation, hygiene is

important - but consider

particular religious groups

and their specific religious

practices

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Hair, jewellery &

make-up

• religious jewellery

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Dress-down

days

• casual Fridays should be

clearly defined

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Dress-down

days

• duty to protect employees

from harassment so take

account of slogans or

images that may appear

on casual clothing that

could cause offence

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Dress-down

days

• retain formal dress for

client engagements

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Introducing a dress policy

• good practice – but not mandatory - to consult with trade

unions or employee representatives

• ensure proper communication with all employees

• policy should strike a balance between the requirements of

the particular industry as well as the employee’s personal

freedom to present their own appearances

• requirements should be based on the duties of the job and

the nature and circumstances of the employment.

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Good practice tips

• ensure that the dress code is communicated to employees

effectively

• provide reasons why the requirements are in place

• ensure that an employee who is in breach of the dress code

fully understands what the issue is and how it can be fixed

• ensure that you are consistent in all aspects of the dress

code

• consider any reasonable adjustments where necessary

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Stated principles of the policy

Need to implement the policy evenly

Justify the action in the event of a

discrimination claim

Consider enforcement action

Enforcing a dress code

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Enforcing a dress

code

• the more detailed the

policy, the greater the

policing required to

enforce it

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Enforcing a dress

code

• always enforce the policy

equally and fairly

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Get in touch

get in touch with any questions

Connect with James

james.tait@brownejacobson.com

+44 (0)121 237 3999

Connect with Sarah

sarah.hooton@brownejacobson.com

+44 (0)115 976 6033