Much was made in the media last week about this week’s ruling in Germany giving employers the right to enforce specific dress codes on staff. There has been public outrage after the State Labour Court in North Rhine-Westphalia ruled on the case concerning the clothing and general appearance of airport security personnel, appearing to give employers a largely free hand to determine how employees should look and dress at work.
The most newsworthy element of the ruling is that it enables German employers to force female employees to wear bras in the workplace. Further, the court held that if female staff do not wear undershirts (so that their bra is visible as a result), employers can stipulate that only white or flesh coloured bras may be worn: and not brightly coloured ones. The German court also held that the length of female workers’ fingernails could be determined by superiors and that hair should be clean and groomed at all times. German male workers are not completely off the hook either: whilst they have the right to sport a beard, employers can demand that it is kept neat and properly trimmed. Somewhat randomly though German companies cannot prohibit workers from using certain shades of hair colour or nail vanish or from wearing wigs.
It has been argued in the media that such a ruling especially regarding the requirement to wear a a bra, must amount to sex discrimination against women.
However the reality is, if such a case were brought in the UK, it is likely that a broadly similar decision would be reached. Dress codes are commonplace in UK workplaces and their staff handbooks; case law overwhelmingly supports the right of employers to impose dress codes on staff to ensure conventional standards of appearance at work.
Employers must, however, be able to show a good business reason for imposing any requirement relating to an employee’s appearance. Where certain detailed rules relate particularly to one sex rather than the other (such as wearing a bra) that difference in itself will not amount to sex discrimination if the overall effect of the dress code is the broadly the same on both sexes, provided it is applied even-handedly.
Cases in the past have included:
•a male trainee police constable who complained about having to cut his long hair off when female colleagues did not have to cut theirs (he lost);
•another male with long hair working on a supermarket delicatessen counter who refused to cut it despite a requirement that employees should not have “unconventional hair styles” (he lost);
•a man required to wear a shirt and tie when female colleagues were only required to dress appropriately and to a similar standard (he lost– though the case was sent back to the tribunal to reconsider on the basis of the right test – ie could the level of smartness required only be achieved by requiring men to wear a shirt and tie)
•a female shop assistant prevented from wearing trousers, when men were prevented from wearing t-shirts (she lost – the employer’s dress code should be looked at as a whole rather than on a garment by garment basis)
In addition to issues surrounding sex discrimination and dress codes, there have been a number of claims of religious and racial discrimination regarding dress and appearance codes at work including:
•a female Muslim employee claimed discrimination on the ground of religion for being instructed to remove her veil when teaching children (she lost – the removal of the veil was required to achieve a legitimate aim, namely to enable children to learn as effectively as possible);
•a devout Christian claimed religious discrimination after being disciplined for refusing to conceal a silver cross on a necklace (again, she lost)
• a male Muslim employee brought a religious discrimination claim on the basis that a dress code requirement that he kept his beard neatly trimmed was religious discrimination. (he lost – the employer’s rule was a health and safety/uniform issue rather than because of his religious beliefs).
•However – a Muslim hairdresser claimed religious discrimination as a result of the company’s requirement that she remove her headscarf while at work (she won – having her hair on display was not the only way of achieving the employer’s aim of achieving a particular look for the salon).
Before adopting any strict dress code policy along the lines of that demonstrated in the recent German case, employers do need to carefully consider the potential sex, religious, cultural and philosophical implications of it. The legitimacy of dress codes that clearly conflict with customs and appearance issues related with certain religious groups – such as requirements for turban-wearing Sikh men to wear uniform hats or to shave their beards – must be carefully questioned. As, at the other end of the spectrum, should issues that may arise as a result of offending the protected philosophical beliefs of groups under religion and belief discrimination regulations. For example, Feminism could, arguably, be covered under Religion and belief discrimination regulations as being a philosophical belief. Thus, enforcing Feminists to wear bras in the workplace may lead to tribunal claims, as the bra, is seen by some feminists as a symbol of female oppression. The likely success of such a claim remains to be seen.
It is clear then, that before implementing or extending any dress code policies in the workplace, HR professionals and policymakers must consider the issue with great care. Employers must be able to demonstrate that they have a good business reason for implementing any dress code and ensure that it is not overly restrictive. Dress codes should be routinely monitored to ensure that no protected group is discriminated against by the policy imposed.
Should problems arise, ensure that they are dealt with in a consistent and sensitive way: start by informally discussing the matter with the relevant employee and referring them to the Company’s policy on dress and appearance. Ask the individual the reason for their non-compliance with the Company’s policy. If the reason for non-compliance is a genuine protected reason (eg sex, religion, race, disability etc), give full consideration and consult with the employee as to how to address the issue and as to whether the code can be applied and the employer’s objective achieved in a way which can accommodate the employee’s circumstances. If, however, there is no acceptable reason for the employee’s non-compliance and the individual refuses to comply, make them aware that continued non-compliance will be treated seriously and may be regarded as a disciplinary issue to be addressed under the formal disciplinary procedure, with the risk of possible sanctions up to and including dismissal.
So turning back to the original question, yes it is likely that an employer in the UK could require an employee to wear appropriate undergarments as part of a dress and appearance code if it is for the purpose of presenting a smart and business like appearance and if the employer can show that it is necessary for the particular job and the requirement is an appropriate and proportionate way of achieving that objective. The argument that men are not required to wear a bra under such code and that therefore women are being treated less favourably would probably not have legs as long as the overall effect of the dress code is broadly the same.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
