Employers Questions - Dress at Work and Sex Discrimination

Q1: My Company has a dress code which requires all staff to wear 'smart clothes' to work. Could the Company be liable to claims of sex discrimination as a result of this policy?
Q2: My Company has a dress code which specifies that men must wear a shirt and tie and women smart skirt/trousers. Is this permitted?
Q3: Although our Company does have a dress code in force, requiring both sexes to wear smart clothes, in practice we allow women (but not men) to wear t-shirts with non smart trousers. Will this result in any repercussions for the Company?
Q4: My Company has a policy prohibiting all staff from wearing earrings. Is this discriminatory?
Q5:My Company hosts regular corporate events and we require female staff to wear skirts to these functions rather than trousers. Men are required to wear a suit. Is this permitted by law?
Q6: I have an employee who has been wearing inappropriate attire to work. This person is in clear breach of the Company dress code. What should I do?
Q7: I have an employee who is a muslim and has asked to wear a veil (the ‘niqab’) at work. I am concerned that this may be a risk to the employee’s health and safety at work; can I prohibit the employee wearing the veil?

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If you require legal advice on this or any other employment law issue, please contact Tony Hyams-Parish or your usual contact in the employment team at Rawlison Butler LLP.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.

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Answers to questions below, please click on the questions above to be directed to the correct answer.

A1: Discrimination on the grounds of sex is made unlawful by the Sex Discrimination Act 1975. The claims which the Company may be vulnerable to are direct and indirect discrimination and possibly a claim under the Human Rights Act 1998.

Direct discrimination occurs where the employer treats a man or woman less favourably on the grounds of his/her sex than he would treat or has treated an employee of the opposite sex. Indirect discrimination, on the other hand, occurs where an employer applies a 'provision, criterion or practice' to both male and female staff, but a smaller proportion of a particular sex can comply with it.

In this particular example the requirement for all staff to wear smart clothes is clearly a requirement which applies equally to male and female staff and is unlikely to amount to indirect sex discrimination because both sexes can comply with it - and there is no detriment to either sex. Discrimination, however, may arise where the employer has different dress code rules for men and women and this issue is examined in the questions and answers following below.

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A2: The fact that the policy specifically states that men must wear a shirt and tie and women smart skirt/trousers and a blouse could amount to direct discrimination. On the face of it both sexes are being treated differently on the grounds of their sex.

There are of course certain conventional stereotypes as to what is acceptable dress for men and woman. The difficulty is of course that what is acceptable dress for men and for women is changing over time.

In order to avoid claims of sex discrimination you will have to show that you have treated men and women alike. This means that as long as restrictions on choice of dress or appearance are imposed to an equal degree on men and women, you will not be in breach of the Sex Discrimination Act 1975, even where those restrictions are not identical for both sexes. Where a dress code is imposed for one sex but not for the other sex, then this is likely to give rise to a claim of less favourable treatment and thus liability for direct discrimination.

Had the policy stated that women could not wear trousers and there was no restriction on what men could wear, then this would potentially be discriminatory as recent cases in this area have shown. In one case, involving a similarly worded policy, a man complained that he could not afford a suit and claimed discrimination because women just had to be smartly dressed. His claim was rejected because he was considered not to have suffered a detriment; both sexes were restricted by having to dress smartly.

However, you should consider whether the traditional requirement for men to wear a suit and tie is actually necessary to achieve the level of smartness you require.

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A3: Yes it might do. Even though the Company has the above dress code in force, which on the face of it might appear fair to men and women, if a discrimination claim is brought the Employment Tribunal will look at all the circumstances including the Company’s custom and practice.

By allowing women to wear t-shirts and non-smart trousers you are directly discriminating against men. This is because men are required to wear a shirt and tie and there is no restriction on dress which equally applies to women.

To succeed in a claim for direct discrimination the male employees will need to show that they have suffered a detriment by being required to wear a shirt and tie. In one case a male civil servant won his sex discrimination claim after he argued that it was unfair that he had to dress in a collar and tie to work when women were allowed to wear t-shirts and even football shirts to work. The men who did not comply with the dress code claimed they suffered a detriment because they faced disciplinary action for breaching the policy whereas women who did not comply did not face such action at all.

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A4: This is likely to be indirect discrimination, because although the requirement is applied to all staff, the effect is that fewer women will be able to comply with it because generally it is accepted that more woman than men wear earrings.

However, it is possible for employers to justify indirect discrimination. A justifiable reason in this example may be that the requirement is necessary on health and safety grounds because the nature of the business involves working in an area which must be kept sterile at all times and the wearing of earrings may risk goods being contaminated. Without such justification it is likely that female employees would succeed in a claim for indirect sex discrimination, if they can show that they have suffered a detriment.

To minimise risks of discrimination you are advised to adopt a less severe policy, for example using the above scenario you could require only those employees who will be working in the sterile area not to wear earrings. You may even want to restrict any wearing of earrings to studs only, rather than no earrings at all.

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A5: Conventionally, society has drawn a gender distinction between what is expected from men and women. Generally, so long as the restrictions on dress and appearance are imposed equally on men and women, the fact that the rules are not identical will not necessarily mean they are unlawful.

A female or male employee wishing to bring a claim would have to show that the dress code was less favourable to their sex and also that they have suffered a detriment as a result. On the face of it restrictions are imposed on both men and women. If, for example, the requirement was for women to wear short skirts then this would be likely to constitute less favourable treatment on the ground that the dress code is demeaning to women. However, some women may consider a requirement to wear a skirt at all as demeaning. This is a situation where the employer should consider carefully the necessity for a policy requiring women to wear skirts when trousers can be just as smart.

On balance, this is potentially direct discrimination because an extra restriction is being applied to women in requiring them to wear a skirt. In order to succeed in a claim the women will have to show that this less favourable treatment is detrimental to them. As it is direct discrimination it is not possible for you to justify the reasons for this requirement.

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A6: If the employee's appearance is causing concern, the first step should be to remind the employee of the breaches of the rules relating to appearance in your staff handbook. You should investigate the matter and give the employee the opportunity to explain his/her reason(s) for not complying with your rules. If the breach is serious and/or the employee continues to refuse to conform to the rules, then it may be appropriate to instigate the disciplinary procedure. Any disciplinary penalty will depend on the severity of the breach with reference to the dress code.

It is important to listen to any representations made by employees in these circumstances and if disciplinary action is not appropriate try and reach an amicable solution if at all possible. If you have any concerns that the policy or its application by the Company may be discriminatory or unfair you should seek legal advice from us before taking any action.

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A7: The Employment Equality (Religion or Belief) Regulations 2003, came into force on 2 December 2003 and prohibit discrimination at work by reason of any ‘any religion, or religious or philosophical belief’. A policy that staff must not wear clothing that covers their face that applies equally to all, may in fact indirectly discriminate against individuals of certain religions who wear a veil. However, as with sex discrimination, it is possible to defend a claim for indirect discrimination on the grounds of religion if you can justify the rule. Any reason you put forward as justification must be proportionate to the legitimate aim behind your reason. Health and safety may constitute justification for a rule that staff must not cover their face, but only if there is a real risk to health and safety if workers cover their face and where there is no other less stringent means of protecting health and safety in the circumstances.

In a recent case where a school sought to prohibit a teaching assistant wearing her veil in class, the Employment Tribunal held that although the provision was indirectly discriminatory, the policy was justified on the basis that the reason for the policy was to ensure the best possible teaching methods for children.

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