Dressing for the Job You Want: Discrimination and Dress Codes

What flexibility do dress codes in the workplace have?

In the second to last week of July 2021, the HR and You office saw temperatures above 30c, a sweltering ten degrees warmer than the average temperatures for July. This is becoming a somewhat common phenomenon – according to Weather Underground, 7 of the past 10 July’s have had heatwaves where the temperature has hit or broken 30c, with most of those happening after July 2015. The world’s getting hotter, and so is your workplace.

Luckily for HR and You, we were all working from home that week.

But had we been coming into our Bolton office, what could we have done to keep cool? Your first thought might have gone to clothing. Light, white clothing helps to reflect the heat of the sun and allows air to escape from underneath the fabric, both of which directs heat away from your body. This is all well and good when you work from home, or don’t work at all, but what about coming into the workplace?

Let’s discuss dress codes.

An employer has a great deal of power to set their own dress codes, with a few exceptions.

The most important relate to anti-discrimination legislation within the Equality Act of 2010; that is, there are certain things an employer cannot make an employee do if the result amounts to discrimination based on gender, sex, disability, race or religion, and that includes police some specific parts of their dress.

Sex and Gender Discrimination

For instance, when it comes to sex and gender, it is illegal for an employer to enforce a rule upon one gender, but not others, unless they ‘enforce a common principle of smartness when read as a whole and neither gender was treated less favourably’. For instance, consider long hair. In 1996, Safeway Plc lost an unfair dismissal case against one of its deli workers, a Mr Smith, who had grown his hair long and kept it back in a ponytail whilst at work. When Mr Smith refused to cut his ponytail off, he was dismissed, and brought to the courts a claim of unfair dismissal.

Though initially it was found there was no discrimination, upon appeal, the courts agreed that, self-evidently, it was unfavourable to men, whilst women had no similar restrictions. This was especially the case as hair length, unlike dress, carries into private life, and it is illegal under the European Convention on Human Rights to infringe on someone’s right to respect in their private and family life. You can change your uniform when you go home – you can’t regrow your hair.

The Equality Act of 2010 also protects those undergoing gender reassignment – though the Equality Act does not specifically refer to dress, it would count as sex discrimination if, for instance, an employer tried to prevent a transgender woman from wearing a skirt or dress, when the same didn’t apply to her cisgender counterparts.

Dress Codes and Racial Discrimination

Well, there are rules there too.

In the case of G v St Gregory’s Catholic College, a boy – referred to only as G – was sent home after arriving to school wearing cornrows. G was Afro-Caribbean and had never cut his hair and keeping the hair in cornrows was a tradition amongst G’s family. The motive behind the strict rules held by St Gregory’s school was understandable – it wanted to keep gang cultures out of schools, and avoid ethnic tensions and violence, and thought distinctive haircuts could become badges of identity that could bring gang violence in. It argued that it didn’t want to give even one exception, in fear the rule could unravel.

However, it should be noted racial and religious exceptions were already given – particularly to the school’s Sikh and Rastafarian population (and for medical reasons). This becomes doubly important when the reason for refusing to shave his head comes into play.

Many Black (and especially Afro-Caribbean) boys in the UK come from West Africa via a history as slaves. For one, braids and cornrows are associated with many West African tribes. And historically, slaves had their head shaved, and then grew their hair back out when freed. In those families, it then became taboo for boys to cut their hair.

Ergo, the rules against cornrows constituted indirect racial discrimination against Afro-Caribbean boys and St Gregory’s rule against them was declared unlawful.

Similarly, in the case of Mandla vs Dowell Lee, a Sikh boy was refused entrance into a private school due to his uncut hair and turban. Hair is prized amongst Sikhs – it is a part of their culture to not cut or shave it, and their turbans are a way of protecting that hair from damage. This has now been folded into religious discrimination, but at the time of Mandla vs Dowell Lee, no such provision existed, and so it was declared ethnic discrimination.

Dress Codes and Religious Discrimination

Protections for religious reasons do exist now – in the case of Bougnaoui vs Micropole SA, a Muslim woman – Ms Bougnaoui – was dismissed because she had refused to comply with a rule that stated she could not wear a headscarf as part of her customer-facing role. Micropole SA claimed that because she had a customer-facing role, and the customers preferred not to do business with a woman in a hijab, it was a ‘genuine occupational requirement’ that she not wear one. The CJEU was not impressed with this defence and agreed that Micropole SA committed direct discrimination against Ms Bougnaoui.

However, interesting as that is – is it relevant to the question at hand? As you can see, none of that prevents someone from modifying their dress if the temperatures soar.

Dress codes and Disability

The final note is on disability and disability aids. The Equality Act is very clear on disability aids; it states “… where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparisons with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”

For example, there are types of devices that help prevent hypermobile joints from sliding out of place, such as ring splints. These look like rings and, to many people, might look like pieces of jewellery, especially ones that spiral to provide a flat surface against the palm or thumb to support the joints in the knuckles and thumb.

However, these devices would be disqualified from any clause that refers to no jewellery because despite their appearance, they function as auxiliary aids and it is the duty of the employer to provide the aid to avoid being put at a substantial disadvantage. After all – someone who is hypermobile might not be able to do work with their hands like typing without them, which would put them at a substantial disadvantage in an administration role.

Likewise, if the role required employees to wear a cap, but doing so would dislodge or disturb a deaf person’s cochlear implant, then it would be up to the employer to make the exception for that employee so that they can hear. If the rule about wearing a cap wasn’t relaxed, it would put the deaf person at a distinct disadvantage in any job that required them to be able to hear things going on around them.

The Bottom Line on Dress Codes

The truth is, outside of these laws, there aren’t any rules that prevent employers from setting whatever dress code they like. Whether it be because they want to set a certain level of professionalism, or make people feel like a team, or just to pick them out as employees among customers, they have every right to set a dress code.

If you’re a fast-food worker forced to wear a baseball cap and thick polo-shirt because they have your employer’s logo on them, then it’s perfectly within their rights to enforce that you wear that uniform, even if it is hot and the fryers make it even hotter in the kitchen. Likewise, if the dress code is business professional, you’d better get your tie dry cleaned.

Your employee handbook is the best place to look to see what the rules about dress are for your company. And if your employer doesn’t have a dress code company handbook, or it’s outdated – then it’s in your best interest and their company’s best interest they get one as soon as possible.

What do you think?

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Here to Help

HR and You’s handbooks and policies are fully in line with current legislation in regards to direct and indirect discrimination – and should you want to craft a dress code policy for your business, we would be more than happy to help you create one that is legally compliant with all the current legislation.

We are here to provide full advice, support, and guidance. We can advise in any HR or Employment Law matter: you can contact a member of our team on 0333 006 9489 or [email protected]