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16-05-2016

A woman working for a City firm in London says she was sent home for refusing to wear high heels. Nicola Thorp was sent home without pay from a temporary receptionist job when she refused to wear shoes with heels. The dress code required her to wear a uniform and shoes with a 2-4 inch heel. Dress codes can be a bit of a tricky area for employers.

Is it Sex Discrimination? 
Broadly speaking it is lawful for an employer to impose different dress requirements on men and women provided that standards are applied equally and one particular sex is not put at an unjustifiable disadvantage.

  • In Schmidt -v- Austicks Bookshops Ltd, a 1979 case, a company dress code said that female members of staff who came into contact with the public were not allowed to wear trousers. Miss Schmidt refused to comply and was dismissed. The Employment Appeal Tribunal (EAT) ruled that she had not been discriminated against because the company imposed restrictions on what men could wear as well.
  • In Smith -v- Safeway, Mr Smith claimed he had been discriminated against on the ground of sex when he was sacked for refusing to cut his hair. Women were allowed to have long hair long if they tied it back but men could not have hair longer than shoulder length. The Court of Appeal said that the imposition of conventional dress standards to both sexes was not discriminatory.
  • In Dept of Work and Pensions -v- Thompson, the EAT said that requiring men to wear a collar and tie to work did not necessarily amount to sex discrimination. The employee would need to show that he was treated less favourably not just differently. He lost his case because the employer imposed equal levels of smartness which men could only achieve by wearing a collar and tie.
  • In Hutchieson v Graham and Morton Ltd, a senior female manager was required to wear the same nylon overalls as the rest of her female team. Male mangers were allowed to wear suits. It was held that this amounted to a detriment and discrimination because policy suggested that female managers were of a lower status.

What about Disability Discrimination? 
It may be impossible for a disabled employee to comply with the strict requirements of a dress code, for example an employee with chronic arthritis may find it impossible to wear heels. In such circumstances an employer is required to make reasonable adjustments.

  • Riam Dean successfully sued Abercrombie & Fitch after she was made to work in the stock room because her prosthetic arm did not fit with its "look policy". She alleged that she was told to work in the stock room when she refused to remove her cardigan at work. A tribunal awarded her £8,000 on the grounds that she had been unlawfully harassed for a reason relating to her disability and had been wrongfully dismissed. The company had also failed to comply with its duty to make reasonable adjustments (Dean v Abercrombie & Fitch).

What About Religious Discrimination? 
Employers need to be mindful of religious sensitivities.

  • In Ewida v British Airways, BA operated a policy that prevented the wearing of visible jewellery. Ms Eweida objected to the policy on the ground that she wanted to wear a two-inch high cross on a necklace visibly. She claimed indirect discrimination. The domestic courts rejected her claim largely on the basis that the wearing of a cross was a personal decision rather than a requirement of the faith. Mrs Ewida took her case to the European Court of Human Rights and won. BA's wish to project a certain image was legitimate but Ms Eweida's cross was discrete and would not have detracted from her professional appearance. Probably fatally to BA’s defence, BA had subsequently amended its policy to allow for the wearing of religious jewellery and the Court said that this demonstrated that the prohibition was not of crucial importance.
  • In Chaplin v NHS Trust, a Tribunal held that that a nurse had not suffered indirect discrimination when she was not allowed to wear a crucifix necklace at work. The policy could be objectively justified because it aimed to protect the health and safety of staff and patients and it was a proportionate means of achieving that aim. The European Court of Human Rights held that the outcome of this case did not offend Mrs Chaplin's rights as the restriction was to protect the health and safety of nurses and patients and that justified any interference with her religious rights.

So What Should Employers Do? 
Dress codes are usually justified by employers on the basis that they are necessary to project a certain corporate image or for health and safety reasons, but employers should consider whether their current policies actually stand up to scrutiny.

It is generally better to allow for a degree of sensible flexibility in any dress code and to give serious consideration to any employee request to depart from the dress code.

Sarah Rushton (srushton@moonbeever.com)
Partner

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.

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