How can employers enforce a dress code policy without claims for discrimination?

Following the story of a corporate receptionist who was sent home on her first day of work for not wearing heels of between two and four inches in height, there has been extensive discussion on the enforceability of a dress code policy and whether and when it might amount to discrimination.

This is a topic that resurfaces in various guises every few years: the current context is whether it is discriminatory for an employer to require a woman to wear heels; in 2014, after Jeremy Paxman appeared on television with a full beard, it was whether it was discriminatory to require a man to be clean-shaven; and prior to that, the European Court of Human Rights ruled that British Airways had discriminated on the grounds of religion by not permitting an employee to wear a visible symbol of faith.

Many businesses, particularly in the retail and hospitality sectors, where employees represent the corporate brand image of the business, require employees to adhere to a strict dress code policy. Sometimes the dress code is necessary for health and safety reasons, for example, steel-toed boots for construction workers. There is a clear need to strike a balance between what is reasonable in the context of the role in question and what could be considered discriminatory on the grounds of gender, race, religion or any other protected characteristic under the Equality Act 2010.

Guidance for employers
There is an ACAS guide for employers on dress code policy and how it should be enforced. Key points include that:

  • Employers must avoid unlawful discrimination in any dress code policy.
  • Employers may have health and safety reasons for having certain standards.
  • Dress codes must apply to both men and women equally, although they may have different requirements.  For example, a policy may state "business dress" for women but may state for men "must wear a tie".
  • Reasonable adjustments must be made for disabled people when dress codes are in place.
  • A dress code can often be used by employers to ensure workers are safe and dressed appropriately. It should, however, relate to the job and be reasonable in nature. For example, workers may be required to tie their hair back or cover it for hygiene reasons if working in a kitchen.

A full copy of the guidance can be found here: http://www.acas.org.uk/index.aspx?articleid=4953

Points to consider when preparing dress code policies
In order to provide a good working environment for employees, as well as avoid the embarrassment of a very public dress code shaming, employers should consider the reasoning behind their dress code requirements when drafting or updating a dress code policy.

Employers may consider asking for employee views when drafting such polices as this may help to ensure that what is in place is both suitable for what the employer is trying to achieve and flexible enough not to have a detrimental impact on an employee’s working day.

As with all workplace policies, once finalised, a dress code policy should be properly communicated to employees, with sanctions for non-compliance and permissible exceptions made clear from the outset. 

Employers should also be aware of the duty to make reasonable adjustments where an employee’s disability may affect their ability to comply with a dress code policy and must consider making exceptions in light of an employee’s personal circumstances, such as race or religion, to avoid indirectly discriminating against certain employees.

Whilst disputes about dress code are likely to arise from time to time, a reasonable, clear and consistently enforced policy will go a long way to protecting the employer.

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