Dress code and appearance in the workplace - is there a need?

26 July 2019 | Jatinder Tara

The Government Equalities Office booklet “Dress codes and sex discrimination –what you need to know” May 2018, provides guidance on dress codes. It confirms dress codes can be legitimately enforced by employers, but any less favourable treatment because of sex could amount to direct sex discrimination. Also, that dress policies for men and women do not have to be identical, but standards imposed should be equivalent.

The guidance advises against gender specific prescriptive requirements, such as a requirement to wear high heels and prohibiting religious symbols that do not interfere with an employee’s work (the restriction on religious symbols must be proportionate and reasonable means of achieving a legitimate business aim – see below cases on such matters).

Employers should therefore, think carefully about the need of a dress code policy and where necessary to consult with staff as to why there is a genuine business need for it and to have also addressed any health and safety implications as to its implementation.

Where a policy is introduced, the Employers must be consistent in its application with potential breaches addressed immediately but possibly giving employees a period of grace to change their dress or appearance before any related disciplinary action is taken.

Dress code policy 

Where there is a dress code in place it should be kept under review to determine if it still required as many major firms have recently relaxed their dress code policy.  For example, earlier this year Goldman Sachs, staff have typically always worn suits, announced the "firm-wide flexible dress code", urging employees to use "good judgement" in their fashion choices and in March 2019, Virgin Atlantic said it was relaxing its uniform requirements for cabin crew, saying they no longer had to wear make-up while on duty. It also said females would be automatically offered a choice of trousers as well as a skirt.

As for body tattoos, it is estimated that approximately one fifth of all UK adults have a tattoo, and this form of art is becoming more socially acceptable but where do employers stand on imposing restrictions within their dress code policy.

There is no law which prohibits an employer from asking workers to cover up tattoos, or even to impose a blanket ban on them throughout the organisation, unless it is proven the tattoos/ body piercing are for religious purposes or the policy contravenes the European Convention on Human Rights.

Even if a dress code on tattoos or piercings indirectly discriminates against employees of a particular faith, an employer may be able to defend a claim by showing that they have objective justification for the policy. 

Employment tribunal cases 

The following are some interesting cases over dress code issues that give some guidance: -

Azmi v Kirklees Metropolitan Borough Council 2007 IRLR 484, the EAT held that the employer did not unlawfully discriminate against Mrs Azmi, a teaching support worker, by refusing to allow her to wear a veil in the classroom.

The employer had evidence that the children did not engage as well with Mrs Azmi when she was wearing her veil as when she was not, and that it impacted on her effectiveness in the role.

The EAT held that, although the refusal to allow the claimant to wear a veil amounted to indirect discrimination, it was justified in the circumstances.

In Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery (EAT) there was no religious discrimination in job interview questions about Muslim interviewee’s dress causing trip hazard. Begum was never told she could not wear the jilbab that she was wearing at the interview, only that she should not wear clothes that might constitute a trip hazard. Ms Begum was permitted to wear a jilbab, even at full length, providing that it did not constitute a trip hazard.

In Eweida v British Airways in 2013 the case concerned a dispute between British Airways (BA) and an employee over uniform policy - the employee wished to wear a visible cross outside her uniform. The European Court of Human Rights found that BA's wish to project a certain corporate image was legitimate, however could not justify this restriction on Ms Eweida's religious freedom. This was in contrast to another case heard as part of the same proceedings, Chaplin case, where it was held that a ban on a nurse wearing a crucifix on her uniform was justified for health and safety reasons.

There have been some European cases in this area in particular the Achbita and Bougnaoui cases but they do not take the matter much further than the position established in the case of Eweida v British Airways in 2013. 

If you would like any further information on dress code or appearance in the workplace, please contact us here.

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