It was recently reported that Goldman Sachs is no longer requiring staff to wear a suit and tie and that Virgin Atlantic had abolished a rule requiring female cabin crew to wear make-up. While this suggests a trend of employers relaxing their dress codes and appearance rules how far can an employer legally go in telling staff what they can and can’t wear to work?
What the law says
The starting position is that employers can set whatever rules they want in terms of uniform, dress and appearance as long as these are not discriminatory. There is no specific piece of legislation which deals with uniform rules expressly but, the law on discrimination will be highly relevant.
The Equality Act 2010 (the Act) outlaws less favourable treatment because of a protected characteristic (including sex, disability, age and religion or belief). This means that employers can have different rules for male and female employees , as long as these are comparable – they do not have to be identical. For example, it may be acceptable to say men must wear a shirt and tie and women must wear smart business dress but, it is unlikely to be acceptable to say women must wear skirts but men can wear jeans.
The Act also prohibits indirect discrimination , for example where a rule or policy puts someone at a particular disadvantage because of a protected characteristic and this cannot be justified by good business reasons. For example, a policy which said staff could not wear jewellery, while applying to everyone might particularly disadvantage employees of certain religions who are required to wear symbolic jewellery.
While there may very well be good business reasons why organisations have dress rules to ensure their staff present a consistent corporate image and smart appearance to the outside world, what needs to be carefully considered is the way in which the employer is requiring this to be done. Often this is where rules can be challenged. For example, why should the desire for staff to look smart and professional only be met if female staff are wearing heeled shoes – it could equally be achieved by wearing (smart) flat shoes. The question always needs to be asked: can the stated objective be met in a different (and more reasonable) way?
When it comes to uniform rules that are justified by health and safety considerations, for example, having to wear a hard hat or high viz jacket on site, there is likely to be less room for challenge. However, that is not to say that in certain circumstances they can’t be, particularly where there does not appear to be an obvious rationale for the rule, an employer can not just hide behind the label “health and safety”.
Can my employer change the rules?
Generally, dress codes will be contained in staff handbooks which are non-contractual documents. This means that employers can change the details without getting the agreement of staff first. However, it would still be good practice to consult with employees or their representatives before introducing any updates. If appearance rules are a term of the employment contract then they cannot be changed unilaterally without the employees’ agreement.
Dos and dont’s for employers
· When formulating a dress code employers need to think about the reasoning behind the rules in the policy and whether these can be achieved in any different/ less intrusive ways?
· Ideally employers should consult with employees before imposing any new or updated policy on appearance. This would include explaining the business or other reasons for it
· Employers need to think about the impact of any dress code requirements on disabled employees and whether any reasonable adjustments may be necessary and how the policy might affect those employees who wish to dress a certain way for religious reasons?
· Communicate the policy to all employees and ensure it is enforced by managers consistently. For example, make sure the code is not enforced more strictly against women than it is against men. Consider whether training on the policy is necessary to achieve this?
ACAS guidance dress code and appearance at work