Dress codes in the workplace

Direct sex discrimination occurs if there is less favourable treatment on grounds of gender and if an individual has been subject to a detriment as a result of the less-favourable treatment. It is necessary to compare like with like, so that the circumstances of the person an employee compares themselves with is similar to their own.

In the case of Schmidt v Austicks Bookshops Ltd [1978], the issue was whether a requirement for women bookshop assistants to wear skirts meant they were treated less favourably than men. The employment appeal tribunal held that this was not discriminatory, as there were other, different rules governing attire and clothing for men. There was no discrimination to the detriment of women, as both sexes had restrictions on what they could wear.

Schmidt held that:

• It was necessary to consider the overall effect of a dress code governing appearance, and not deal with matters on an item-by-item basis.
• A code which applies a conventional standard of appearance is not of itself discriminatory.

This issue has arisen very recently in the case of Thompson v Department for Work and Pensions. Mr Thompson worked as an admin assistant for JobCentre Plus. He did not come into contact with the public, but a new dress code required all men to wear a collar and tie.

The aims of the dress code were to ensure that "all staff dressed in a business-like and professional way". Women were not required to wear any particular item of clothing.

Thompson claimed that the requirement to wear a tie was less-favourable treatment. It was generally accepted that, as only men had to wear ties, the requirement was for a reason relating to his sex. He had suffered a detriment in that he was disciplined for not complying.

The employment tribunal asked itself whether, but for Thompson being male, he would have been required to wear a tie. As the answer had to be "no", the tribunal decided that the requirement on men to wear a tie constituted discrimination.

This was rejected by the employment appeal tribunal, which said that the correct test was to look at the effect of the dress policy overall and not items of clothing individually.

The proper question was whether, applying modern standards of contemporary dress, the level of smartness required could only be achieved for men by requiring them to wear a collar and tie.

Check list

• Different treatment of men and women is not of itself less-favourable treatment - dissimilar treatment without an advantage to one sex is not discriminatory.
• It will not usually be discriminatory to require staff to adopt a conventional form of dress.
• Examine what the overall effect is of your organisation's dress code.
• Consider what you are trying to achieve through a dress code or requirement that staff wear a uniform.

• Ask whether it is necessary for men or women to wear specific items of clothing in order to achieve those aims.

  Beware!
  The Thompson case is now to be heard by a fresh tribunal, so Thompson might still win.

An employee could bring a claim at the employment tribunal alleging that a dress code has a discriminatory effect on men or women. There is no statutory limit on financial compensatory awards for injured feelings in sex discrimination cases, so damages awarded can be high.

In addition, if the employee has been dismissed for misconduct - for example, because they persistently refused to wear an item of clothing - they could allege their dismissal was due to a discriminatory policy and claim for lost earnings.

Contact
Joy Hankins
National Employment Group
Laytons Solicitors
020 7842 8000
www.laytons.com

The problem
A new hotel manager has recently introduced a staff dress code. New uniforms have been supplied to male porters, receptionists and customer-facing staff, including waistcoats with the hotel's emblem woven into the cloth.

Female staff have not been asked to wear waistcoats, although they have always worn a similar outfit of matching jacket and skirt or trousers, again provided by the hotel. One male member of staff claims that he is subject to sexist treatment by being required to wear the waistcoat.