Recently, a company hit the headlines in the UK for all the
wrong reasons after the agency it used to supply reception staff,
sent a female staff member home because she was refused to wear
high heels. Public facing roles are often subject to requirements
about appearance but this incident raises questions about whether
gender specific dress codes are actually sexist and outdated.
Over the last 20 years, the UK courts have adhered to what might
be termed 'traditional' views on what it means for men and
women to dress appropriately:
In 1996, the courts had no trouble in finding that a
supermarket could require their deli counter workers to dress in a
smart and conventional way; meaning that men were not allowed to
have long hair, whilst women were
In 2004, courts confirmed that requiring employees to
'dress appropriately and to a similar standard' meant that
men could be required to wear a suit and tie, without there being
any sex discrimination, even though women had a greater choice in
what they wore
In 2010, a decision to dismiss a male police recruit, who wore
his long hair in a manner that complied with a gender neutral dress
code and which would have been acceptable for female police
recruit, was upheld as being fair and non-discriminatory
It's hard not to consider that although only a few years
have passed since these decisions, the cases look out of
date. Why should a man be unable to wear long hair at work
and why should men and women have different levels of choice in
terms of what they can wear?
Does there remain a place in today's workplaces for
women being required to wear heels at work when a man does not have
Certainly the wide press coverage and public uproar about this
recent "shoes" incident indicates that the previous
judgements of the courts in facilitating different dress codes
between the sexes are starting to look out of date...
And in a recent case a café manager who was sacked for
refusing to wear a tight low cut top, brought a successful claim
for sexual harassment.
The real issue is that given the developments in society's
views on gender norms, has what is accepted as
'conventional' for each gender to wear changed? Can
employers really justify requiring men and women to dress in a
specific and perhaps outdated way? With David Cameron
sporting an open necked shirt and Theresa May occasionally wearing
flat shoes without being thrown out of Parliament, it is clear that
what is appropriate business dress has moved on.
The question for employers if not now, then soon, will be how to
formulate a dress code that's appropriate for their business
and then to implement it fairly. Applying dress codes in a
gender neutral manner looks sensible, leading to better employee
engagement as well as a more diverse workforce, with the added
benefit of avoiding any allegations of discrimination based on sex
or sexual orientation. It is also worth remembering that it
is unlawful for a person to be treated less favourably because of
their gender reassignment.
Employers will need to bear in mind that with all the recent
focus on sexist dress codes, religious dress can also be a factor
for employers to consider. Employees may turn up wearing
clothes or accessories linked to their religion, which conflict
with the employer's dress code and employers will need to
consider whether their potentially indirectly discriminatory
requirements can be objectively justified. When a BA employee
wanted to wear a two inch cross on a necklace, BA initially
objected but the European Court of Human Rights held that the
interference to the employee's rights to manifest her religious
rights could not be justified. However a nurse failed in a
similar claim because the hospital could justify its objection to
the necklace on health and safety grounds. Similarly asking a
teaching assistant not to wear a niqab veiling her face was
justified as it prevented effective communication with her
pupils. Remember that there are specific legal exemptions to
enable Sikhs to wear a turban instead of a safety helmet in all
From our perspective, a dress code should be gender neutral
(because we cannot see a reason any other approach could ultimately
any longer be justified) with exceptions to cater for particular
characteristics or preferences.
In short, it's clear that views are changing and that it is
time dress codes were brought to heel!
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Case law concerning the Agency Worker Regulations remains limited. We recently advised a recruitment business involved in a dispute with a "temp" and a hirer regarding who was liable for an alleged breach of AWR Regulation 5.
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