Dress codes: balancing the needs of employer and employee
When a receptionist was sent home from PricewaterhouseCoopers for declining to wear high heels, more than 150,000 people signed a petition calling on the Government to make it illegal for employers to require staff to wear high heels. Dress codes at work can be an emotive issue – but where does the boundary lie between legitimate concerns such as safety at work or the maintenance of corporate identity on the one hand and overt sexism on the other? One might expect there to be clear water between these extremes, but when you read that Aeroflot are reported to prefer selecting slim and attractive stewardesses on the basis that overweight staff would constitute a hazard in an emergency, it is all too easy to see how the distinctions can become blurred.
A recent Parliamentary report found that employers do not understand their obligations in relation to staff dress codes, yet the Government has declined to legislate in response. Their stance is understandable, for the law already requires employers to be on their guard – inappropriate rules can result in claims ranging from unfair dismissal to unlawful discrimination on grounds such as religion, sex, disability, gender reassignment or age. Employers can find it difficult to relate these legal concepts to the practical issue of what can and cannot be required in terms of dress code and the Government’s announcement that new guidance is to be developed will be welcomed.
If an employer chooses to develop its dress code through consultation with its employees, the likelihood of identifying and resolving any difficulties becomes all the greater. Once the requirements of the employer get out of line with what the employee is comfortable wearing (or not wearing), this is when the difficulty starts. Dress issues are very sensitive to the context of a particular workplace, to specific employees and to specific jobs, so the avoidance of an imposed ‘one size fits all’ policy is likely to be a good thing. Some industries will have a health and safety imperative which dictates what employees need to wear, such as PPE; there is an overriding duty to provide a safe place of work. Others will be in consumer-facing industries where branding is critical and employees cannot be seen to be ‘off message’. The more difficult issues tend to arise where there is less of a clear-cut rationale for the employer to impose specific dress requirements.
If an employer is accused of unlawful discrimination, it will want to be able to run a defence of justification – so employers should only impose dress requirements where they have good reason for doing so. That might involve having one set of rules for customer-facing staff and another for those who work behind the scenes. The next line of legal defence would be whether a justifiable dress requirement is proportionate in terms of achieving the employer’s objective when compared to the detriment to the employee. This concept recognises the need to strike a balance between the interests of employers and employees.
There is no problem with a dress requirement that is distinctively different for men and for women; however, the level should be comparable. For example, men and women may be required to dress smartly, though the details will be different – lounge suits on the one hand and smart dresses on the other, for example. Provision should be made for suitably smart variations where required by particular individuals, for example a disabled employee who might be inhibited by a particular dress requirement. There is nothing wrong in expecting staff – especially customer-facing staff – to maintain an attractive appearance, but when that translates to requirements that some staff might find inappropriate, such as blouses left partially unbuttoned or requirements that are uncomfortable, such as high heels, it becomes difficult to see how this could be considered ‘proportionate’.
Religious aspects of dress requirements regularly cause difficulties. Latterly, much attention has focused on headscarves. In a recent Belgian case, the Advocate General of the European Court declared that an employer could require a female employee to leave behind her Islamic headscarf when coming to work. He ruled that this can be justified on the grounds of creating a workplace which is neutral in terms of religion and ideology. A similar line of thinking would justify the removal of crucifix necklaces, for example. Yet it would be a bold employer that took this decision as license to ban headscarves given that this might be expected to rule out, as a matter of conscience, Muslim candidates from taking up employment. Such a rule would result in a less diverse workforce and an employer without a strong justification for such a rule could not impose it with confidence.
Given the emotive issues around dress requirement, the impact on the workforce and the potential for reputational damage, the forthcoming guidance will be welcomed. Meanwhile employers should talk to their staff about these issues and seek to achieve a consensus wherever possible.
Michael Ryley is a partner in the Employment, Pensions and Immigration team at Weightmans.