Legal: How to avoid a dress code drama in the workplace

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Whether it’s beards, heels, shorts or headscarves, ‘what to wear’ is a recurring theme for HR horror stories, says Simon Whitehead

Putting together a dress code policy that suits your business’s needs without creating personnel problems requires careful tailoring. These tales from 2017 provide some useful lessons.

Stamping out sex discrimination

2017 began with an e-petition about high heels at work. A parliamentary committee reporting on workplace dress codes found the law was “not yet fully effective” in protecting employees from discrimination at work. It called on the government to ensure the law on discrimination was more widely understood. Then equalities minister Caroline Dinenage vowed: “Shod in heels or flats, we are collectively putting our foot down.”

Tip: Don’t risk getting crushed in the employment tribunal or the media. Keep equality concerns in mind when considering dress codes for your workforce and potential recruits. Avoid rules that are more stringent for one gender than the other, which could amount to less favourable treatment on the grounds of sex. Such rules could open you up to direct sex discrimination claims under the Equality Act 2010. Where you can, apply the same standard to both men and women.

Listening to those affected

Exeter schoolboys made the headlines when they turned up to school in skirts to protest their school’s no-shorts uniform policy. While girls were permitted skirts and cool legs, the boys had to sweat it out in long trousers. Not fair, they said (donning their sisters’ or friends’ skirts).

Tip: Be flexible. Listen to your employees’ views (easier to hear, if you ask the question!). Swimwear may never be appropriate just because the mercury’s rising, but be reasonable – let your staff know when it’s OK to ditch the jacket and open that top button.

Seeking your employees’ views and adjusting your behaviour where appropriate on broader dress code issues might help your employees understand where you are coming from, and could help you avoid a claim.

In cases of indirect discrimination, it is open to an employer to potentially justify an act of discrimination if it is a proportionate means of achieving a legitimate aim; for example, staff being asked to wear a uniform to project a polished image to clients. However, if the aim is to appear smart and professional, it is difficult to see how this cannot be achieved by wearing flat shoes, a short-sleeved shirt or a headscarf.

A neutral approach to religious symbols

Spring 2017 saw two cases come before the European Court of Justice about dress ‘requests’ concerning religious symbols. In the first, a receptionist’s right to wear a headscarf during working hours for religious reasons brought the religious dress code issue to a head once again. In the second, an engineer was asked not to wear her headscarf on client visits after a client had complained about her wearing it.

Tip: If you are thinking about imposing dress codes that could impact on employees with certain religious or political beliefs, try to adopt a code that: applies to everyone; is set out in writing; and forms part of your employee handbook. Ad hoc decision-making leaves more scope for problems.

Carefully consider whether proposed codes are strictly necessary and why. Staff may dress a certain way for religious and/or disability reasons. Where that is the case, exceptions should be made where possible, unless there is a legitimate reason for the restriction; for example, loose clothing may be a tripping hazard. Don’t dismiss an employee who refuses to comply without taking advice; consider first whether they could be moved to another role where the code need not apply in full.

A close shave

A social housing firm faced the media knife for ‘banning’ male employees from wearing beards. Apparently, beards prevented the company’s mandatory health and safety dust masks from fitting correctly. A union official reportedly accused the firm of ‘hair raising’ arrogance, pointing out that other masks, which would fit over beards, could have been made available.

Tip: Even if you do your best to tick the legal boxes, the British media is a fickle creature that loves a good story – be it hairy or otherwise! You don’t want to be in the news for all the wrong reasons so try to keep in mind this ‘bigger picture’.

A model recruiter

The Equality and Human Rights Commission condemned a model recruitment agency that advertised for a personal assistant with ‘a classic look, brown long hair with B-to-C cup’, labelling this “appalling, unlawful and demeaning to women”.

Tip: Be alive to discrimination issues when advertising and recruiting. Exclude physical characteristics from advertisements unless you can show they’re a real requirement of the job and are proportionate to achieve a legitimate aim. Consider whether age or religious requirements can be objectively justified. If you do use a restriction, clearly state the reason for this. Take care not to inadvertently use words that imply there is a restriction; for example, ‘young’ or ‘mature’ or ‘recent graduates’. Consider also where you’re advertising the job. Is your choice restricting the likely pool of candidates?

Simon Whitehead is a partner at HRC Law

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