Employers today rarely go out of their way to discriminate against employees but, in an age where ‘looks’ can also be important, how can employers ensure that they can maintain appropriate standards, without inadvertently discriminating and potentially finding themselves in the eye of the media?
If you decide that you do need to implement some form of dress code, where do you draw the line and what are the pitfalls you can avoid?
The big issue is discrimination. Employees who have certain characteristics are protected from discrimination of various forms. The list of ‘protected characteristics’ covers age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Before you implement any dress code, we would recommend that you review these protected characteristics to see if they may be directly or indirectly impacted by the proposed rules. For example:
In the first instance, we recommend that you look at the reasons why you would prefer to put in place these measures; maybe it is for health and safety or to promote a certain image; then examine whether you can make an exception to the rules. For example, you may be able to permit the wearing of head coverings, as long as they are professional in appearance (or even tie in with the colours of any uniform), a single wedding ring or other plain jewellery, may be acceptable to you and you may be able to permit women to wear trousers.
Establishing a legitimate aim is usually the easier half of the test. The scope of legitimate aims is potentially unlimited, although they must correspond to a ‘real business need’. This means that there must be evidence that the employer’s actions actually contribute to the pursuit of the legitimate aim and so it is always sensible to routinely evaluate a particular measure to ensure that it is achieving the desired objective.
The second half of the test is that the measure is a proportionate means of achieving that aim. To show that actions are proportionate, you must demonstrate that the measures taken are ‘reasonably necessary’ in order to achieve the legitimate aim(s). The actions will not be considered reasonably necessary if you could have used less discriminatory means to achieve the same objective. The Tribunal will carry out a balancing act between the business needs of the employer and the effect on the claimant/ group sharing the claimant’s characteristic. The question of proportionality will always be a fact-sensitive issue for Tribunals.
As can be seen, the issue of dress codes can be a sensitive one for employees, as they can impact on religious and cultural expectations and requirements.
If you would like any further advice on dress codes or any aspect of employment law, please contact a member of our Employment & HR team on 01332 226 149 for a confidential chat.
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