After 20 years of marriage I had a major wardrobe malfunction. Getting ready one night I slipped casually into clothes my wife suggested I buy and suddenly noticed that I’d started to dress like Phil Collins. Having spent the previous 30 years dressing like a poor man’s cowboy it was a shock – a horror I had been spared through years of getting ready for school and then work. I just needed the right uniform. Blazer gave way to suit. Simple. And so life was generally for men, until out of nowhere materialised dress-down Friday – and the world changed.
Once-relaxed middle-aged men now found themselves grinning uncomfortably at each other in linen three-quarter-length trousers, in a desperate attempt to keep pace with Kevin from accounts (who could do everything they could at half the price). Appalling. Out of this maelstrom came only one real gift – a harsh realisation of the nightmare women have had on a daily basis for decades, without that standard uniform. With embarrassment, I remember the trouser wars of the 1980s and wish I had done more to help those colleagues.
Things have of course settled down, with some employers going the whole hog and allowing full casual (with tattoos) and others abandoning dress-down altogether. But can things ever be the same? In this age of millennials, can the genie really be put back in the bottle? On the one hand we have Mark Zuckerberg making squillions in his grey ‘tee’. On the other, experts such as Dr Karen Pine, professor of psychology at the University of Hertfordshire and fashion psychologist, suggest dressing casually can make employees much less focused and alert at work. Clearly this is a major issue which affects people in a very real way. But how many employers really grapple with it well?
Many is the dress code policy and wide is the handbook that contains an out-of-date and ill-policed code. Yet could this be a major issue of our times? It is a workplace matter that cuts across the gender divide and affects people on a daily basis. There has to be a place for the views of the old, but also of the young. The dowdy and the flamboyant surely deserve a place at the table. And then there is the matter of tattoos and body piercings…
Employers introduce dress codes for many reasons, including portraying a professional image, encouraging conformity and protecting workers’ health and safety. Whatever dress code an employer seeks to implement, they need to keep potential discrimination issues in mind and ensure that their requirements are proportionate in light of the aim they are seeking to achieve. In particular, they need to be alert to religious sensitivities, as well as possible age, sex and race discrimination. The recent case of the female receptionist sent home from work when she refused to wear high heels gained a great deal of media attention. An online petition was even set up on the UK government and parliament website calling for a change to the law to make it illegal for a company to require women to wear high heels at work.
Treating a woman less favourably than a man in the same circumstances already amounts to direct sex discrimination. Although it is perfectly legitimate for a dress code to have different rules for men and women, the rules must not be more onerous for one sex than another and a high heels requirement for women certainly seems to fall foul of that rule. Requiring the same rule for men is frankly not so Moneysupermarket.
Dress codes will sometimes address the issue of tattoos and piercings. Many employers are becoming increasingly flexible towards their employees having visible tattoos at work, although attitudes still vary significantly in different industries and sectors.
Recent research published by Acas suggests that employers risk losing out on talented young people due to concerns about employing those with visible tattoos and piercings. The study revealed that almost
one in three young people have a tattoo and almost half of women aged 16-24 are estimated to have a non-earlobe piercing, suggesting that bans on visible tattoos and body piercings could be indirectly age-discriminatory. Whatever an employer’s approach towards the subject, it is sensible to adopt a suitable policy and make clear what is and is not acceptable. For employers that allow employees to display tattoos at work, it is important to be clear in any policy that the tattoos must not be in any way discriminatory or otherwise offensive.
There are currently two cases before the European Court of Justice (ECJ) considering whether a ban on wearing the Muslim hijab amounts to religious discrimination. The cases involve Muslim women in France and Belgium who claimed that their employers discriminated against them on religious grounds by dismissing them for wearing headscarves at work. Both countries are secular, enforcing the separation of private religious beliefs from public life. Challenges to dress codes have traditionally been brought as claims of indirect discrimination, where the employer has the chance to justify why a particular rule is necessary. However, the ECJ was asked in these cases whether the ban amounted to direct discrimination, where no justification defence is available, although employers can make use of a ‘genuine occupational requirement exception’ if the ban can be justified by the occupational requirements of the employee’s job.
The opinions given in the two leading cases unhelpfully appear to be in direct conflict. In Bougnaoui v Micropole SA, a French employer asked its employee not to wear her headscarf when visiting clients, so as to ‘protect client relations’. The advocate general concluded that the employee’s dismissal was direct discrimination – the French employer had not shown a genuine occupational requirement for its policy and therefore could not defend its discrimination. The view here was that the occupational requirement exception has to be interpreted strictly and cannot be used to justify a blanket ban.
In the similar facts case of Achbita v G4S Secure Solutions NV, however, the advocate general considered instead that there was no direct discrimination because the company’s policy of ‘strict religious and ideological neutrality’ affected all employees equally and the requirement she remove the headscarf did not fall foul of the rules. Here it is notable that the dress code prohibited ‘any visible signs of political, philosophical or religious beliefs’. Even if the dress code’s ban on religious clothing was discriminatory, the advocate general’s view was that this was justified by the genuine occupational requirement of the company wanting to project a neutral brand to the wide range of customers with which it dealt.
The judgments are not of course binding on the ECJ, which is expected to deliver its judgments later this year. However, if the ECJ upholds the view that dismissing an employee for wearing a headscarf in breach of a dress code requirement amounts to direct (rather than indirect) discrimination, this will have serious implications in the UK.
Our domestic courts are currently required to have regard to the ECJ’s judgments. However, UK employers will struggle to defend direct discrimination claims because of the more limited scope of the UK’s genuine occupational requirement defence. Of course, the recent suggestion that the UK will sever the ‘supremacy’ of the ECJ may well change everything. For now, though, we live with uncertainty.
Like the school trip years ago, the list of what clothes to bring might be exciting to some, but for most, dress codes look likely to remain a minefield and a threat to world peace (well, in the office at least). I cannot help but think if we employment lawyers could help employers really crack this, the workplace might never be the same. Could this help men and women lead happier lives? Perhaps it may even promote world harmony. But then, as Phil Collins sang, ‘you can’t hurry love’.