It has been cold and grey for so long that I thought I would never be able to crack out the tee-shorts and short sleeved dresses. But we have had more than one day of sunshine this week and we are all making the most of it. Inevitably summer – and summer clothing issues- have been creeping into the workplace.
Every year there’s a battle royal over flip flops, camisoles, shorts and other summer clothing as employees try to feel a bit more comfortable and employers try to keep the place looking professional. I can remember going into a financial services company in Brighton one beautiful sunny day a few years ago. It was dress down Friday – and they were in very casual summer mode indeed. I did feel a bit like the elephant in the room in in my usual headmistress suit (albeit a colourful summer job!). If I’d known about the usual Friday practice I would probably have worn slightly less formal tailored separates.
Dress code is one of those surprisingly emotive areas, so much so that where employers have a dress code we recommend that employers give clear guidance about what is and what is not acceptable at an early stage. I have heard a lot of nonsense about “my human rights to wear flip flops/shorts/ripped jeans/ Motorhead tee-shirts etc.” to work. There is no such right. But employers do need to make sure their requirements don’t discriminate and treat one group less favourably.
A few weeks ago The Telegraph reported a 'bra wars' (oh dear) row over new 'skimpy' blouses on Virgin Trains. Virgin’s female staff complained that new uniform blouses were made of insufficiently heavy material and would reveal dark underwear. The company has given each female employee a £20 voucher so they can buy suitable underwear. I am tempted to say that it was all rather silly (a storm in a C cup?) … Perhaps it was a slow news day, perhaps the women were making a fuss about not very much, perhaps Virgin were not very sensible about their choice of clothing. Whatever the rights and wrongs of it, all this causes unhappiness, upheaval, is potentially discriminatory (male employees have a different shirt and are obviously not affected by the bra issue) and generally is a waste of time. But it is still something that has to be correctly addressed and resolved.
The key legal issues relate to discrimination. The Equality Act 20102 gives protection on grounds of a protected characteristic, for example, gender (as in the case of Virgin). Where there is a complaint of discrimination, the employer must show that the discrimination complained of was a "proportionate means of achieving a legitimate aim". Some years ago a young married Muslim woman, Mrs Azmi, applied for a job as a bi-lingual classroom assistant. Although she did not wear a full face veil to her interview, after she started her employment she asked to wear it when she was working. The school carried out several tests and found that the children responded much better when they could see her whole face. They also took advice from an expert whose guidance reflected their own findings. She was asked to remove her veil, but this was limited to the time she spent directly with the children. She refused and argued discrimination on grounds of her religion. Although it was true that the requirement to remove her veil when working with the children did constitute indirect discrimination, the court found that the request was not only justified, but proportionate i.e. no more than was strictly necessary in the circumstances.
Dress code or uniform does not have to be assessed on an item by item basis. You look overall at the expectations of one gender and compare them with the overall expectations of the other. In one case, a woman employed as a waitress who worked in a bar successfully argued sex discrimination when she was required to wear a tight-fitting red dress during the summer. Male employees wore loose black shirts. The woman, a Muslim, said that the dress made her "feel like a prostitute". In that case, the court considered the dress and the effect that it had upon her and compared it to the men’s uniform. The court found that the dress code was discriminatory on grounds of gender.
- It’s always a good idea to consult with employees about dress code. If they have a sense of ownership they’re much more likely to be happy to comply with the eventual outcome.
- Think about health and safety. Flip-flops, open toed shoes or mules at work may not be appropriate. Sometimes safety overrides a right connected with a protected characteristic. For example, Shirley Chaplin, a committed Christian, was told by her employers that she must hide or remove the cross or remain out of the hospital wards on grounds of safety. She challenged it, but it was eventually upheld by the ECJ.
- Make sure you take an evenhanded approach so that dress code requirements for both men and women are similar. For example, if you require men to wear formal clothing for work, then women will also be required to wear formal clothing, although it may not take the form of a shirt and tie.
- Think holistically. Dress code is much wider than clothing. Consider piercings, tattoos, hair and general grooming.
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