Work dress codes appear, to this writer at least, to be somewhat more relaxed today than was the case 20 years ago, or even as recently as five years ago, when Swiss financial services giant UBS was widely ridiculed for having issued to staff a dress code 44 pages long. This more relaxed approach may be down to a variety of factors, such as a greater tolerance of personal expression, the blurring of boundaries between home and work in these days of “agile working”, and/or the example set by high profile hoodie/T-shirt-wearing dot.com billionaires.
And yet, work dress codes have been much in the news this year.
In May, temp worker Nicola Thorp was told to change into high heels when she arrived for her first day of work as a receptionist at accountancy firm PwC wearing flat shoes. She was subsequently sent home without pay, and told that she had to wear shoes with heels of between 2 and 4 inches. The widespread adverse publicity caused by this incident resulted in the outsourcing company which had initially engaged Ms Thorp “reviewing” its “appearance guidelines”, whilst PwC sought to distance itself by claiming that the offending dress code “was not a PwC policy”.
More recently, in July, there have been conflicting preliminary opinions in two cases passing through the European Court of Justice, both of which are concerned with the right (or otherwise) of employers to ban employees from wearing Muslim headscarves at work. In Achbita and another v G4S Secure Solutions the Court’s Advocate General opined that a Belgian company’s dress code, banning employees from wearing any visible religious, political or philosophical symbols in the workplace, which was used to prevent a Muslim employee from wearing an Islamic headscarf, did not amount to direct religious discrimination. However, in the case of Bougnaoui and another v Micropole SA, a different Advocate General expressed the view that an employee’s dismissal for wearing an Islamic headscarf at work, in breach of a direct instruction, was directly discriminatory. (The European Court of Justice is due to give judgment in both of these cases towards the end of the year.)
These cases serve as a useful reminder of the challenges involved in adopting dress codes at work.
There is no legal reason why an employer cannot introduce a dress code and, if an employee does not adhere to a legitimate dress code, he or she can be lawfully disciplined and, ultimately, dismissed. There are many reasons why an employer may have a dress code – for example, workers may be asked to wear a uniform to communicate a corporate image and ensure that customers can easily identify them. In other cases, dress codes may be necessary for reasons relating to health and safety.
However, employers must avoid unlawful discrimination in any dress code policy, and such policies should apply equally to men and women (although they may have different specific requirements). It is good practice when drafting a dress code for employers to consider the reasoning behind it. In some cases, it may even make sense to consult with employees regarding any such code to ensure their “buy in” (although there is no legal requirement to this effect). Once agreed, it should be communicated to all employees, so that they understand what standards are expected from them, and are aware that a failure to comply with such a policy may be treated as a disciplinary matter. In particular, where employers wish to cover issues surrounding religious dress within their policies, they should tread carefully. Employers will need to justify the reasons for banning such items – any restriction should be connected to a real business or safety requirement – and will need to show that the dress code requirement is “a proportionate means of achieving a legitimate aim”.