Avid fans of Coronation Street will be well aware of the situation facing the two young barmaids at the Rovers Return …. Toyah and Gina have been told by the new owners of the pub that they are to wear uniforms at work. However, the choice of uniform chosen by their male bosses leaves little to the imagination, since it is a short and revealing sparkly dress. Unsurprisingly, the two girls have objected to the new uniform requirement and have gone on strike. This briefing discusses the employment law issues arising from their predicament.
Sex Discrimination
Section 6 of the Sex Discrimination Act 1975 makes it unlawful for an employer to discriminate against a woman by subjecting her to 'any other detriment' whilst in employment.
If employees of one sex are forced to comply with dress requirements not imposed on the other they may be able to claim sex discrimination. Being subjected to any rule not applied across the board can amount to a detriment.
However, some restrictions may be so slight that they are not actionable. For instance, one case found that it was not unlawful to require female employees at a casino to wear nail varnish while another held that a requirement for men to wear suits instead of a uniform did not amount to a detriment. Both men and women were required to dress smartly and although women could wear what they liked provided they were smart, there was no greater burden on men to comply with the company's requirement for them to wear suits.
The question for the Coronation Street girls would be whether a man would be subject to a different dress rule. Direct discrimination is where a person discriminates against a woman if on the ground of her sex he treats her less favourably than he treats or would treat a man. In the absence of an actual man with whom to compare the women's treatment, a 'hypothetical male comparator' should be used. So here, would the bosses of the Rovers require barmen to wear equally scanty clothes? If they would ask men to wear a shirt and tie, but the women skimpy dresses then this clothing rule could be said to operate unfavourably towards women and amount to less favourable treatment.
Comparing the treatment of men and women can prove problematic. Conventional ideas about dress do distinguish between the sexes and although these ideas change with time a man may find it difficult to argue he has been treated less favourably because he cannot wear a dress to work!
Case law has held that the correct approach should be to assess the employer's rules generally rather than on a garment by garment basis. Then it should be decided whether the effect of the rule is more restrictive for one sex than another. Provided there is an even-handed approach then the employer will have treated men and women alike.
Constructive Dismissal
Toyah and Gina could argue that their bosses' actions have entitled them to terminate their contracts of employment because there has been a fundamental breach of contract. They could bring a claim for constructive unfair dismissal provided they have been continuously employed for a year.
The breach must be fundamental. Here it might be argued that the requirement for women to wear tight clothing constitutes a unilateral change in the contract of employment (provided there is no provision for flexibility to introduce a change relating to uniforms in the contract).
There could also be a breach of the implied term of mutual trust and confidence. It would be said that the men have behaved in a manner likely to seriously damage the employment relationship. By discriminating against women and treating them less favourably it could be said that there has been a fundamental breach of contract.
Toyah and Gina could resign before the men back down and change the new clothing rule. Once it has been proved that an employee has been constructively dismissed the burden of proof shifts to the employer who must show that the employee was dismissed for a potentially fair reason. The owners of the pub would have to argue that the reason for the change was 'some other substantial reason' and that it was necessary to ensure the future success of the pub to introduce the requirement. They must also show that the requirement was introduced fairly and that this was done after consultation with the employees. Since the success of the future business is unlikely to be influenced by the barmaids wearing short dresses and since no mention of this dress code change was made to them, the employers are unlikely to succeed on this point!
And Finally
It might be said that there has been a transfer of an undertaking i.e. the sale of the pub under the Transfer of Undertakings (Protection of Employment) Regulations 1981. Under TUPE all the rights and obligations arising out of the employee’s contract of employment will transfer across to the new employer. However, once the business has been acquired by the transferee then one of the key steps to be taken is the harmonisation of terms and conditions. However, if any change to contracts are made because of the transfer itself, then such changes will be void. This is despite the fact that the employee may have agreed to such changes.
Where the transfer or a reason connected with it is the reason or principal reason for the dismissal the dismissal will be automatically unfair. It is rather doubtful whether the change in the contracts of employment in this particular case are transfer related!!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.