Should we regret the passing of the tie and pin-stripe? Ranjit Dhindsa, Head of Employment at the Midlands office of international law firm Reed Smith reports on the trend towards open-necked shirts and the inevitable clash with rules and regulations.

It seems ironic that just as workplaces relax their stance on casual dress, they sharpen up the formality of their policies to deal with it.

One reason may be the need to define adequately what can be construed as ‘acceptable’ casual dress.

The employer’s perspective
Many employers in the UK have a dress code policy specifying what standard of dress and appearance is required of their employees. For some employers, it will merely state that they should dress in a smart fashion, so as to maintain a professional corporate image. For others, however, the policy may be more specific for health and safety reasons.

Can a dress code be discriminatory?
Employers could find themselves facing tribunal claims for discrimination when dress and appearance codes clash with religious beliefs, racial origin or sex.

Religious discrimination
Discrimination on the grounds of religion or belief was outlawed by the enactment of the Employment Equality (Religion or Belief) Regulations 2003.

This year, the employment tribunal heard a religious claim from Mr Mohamed against Virgin Trains. He alleged that his managers had asked him to trim his beard, and that he was unable to comply on religious grounds as he was a devout Muslim.

Virgin Trains maintained that his dismissal was due to his poor performance. The tribunal rejected all of Mohamed’s claims and accepted that the dismissal had been unrelated to the issues that he referred to. It concluded that he had in fact been dismissed due to his poor performance and lack of enthusiasm for the job.

In 2004 in Williams v South Central Limited a US citizen who worked as a train dispatcher at Victoria Station stitched a small US flag on to his reflective waistcoat. His managers objected, as there was a rule that nothing could be placed on reflective waistcoats. He refused to remove it and was dismissed. He claimed that it was because he had “stood up for his beliefs as an American citizen”, and had therefore been treated less favourably because of his beliefs. The tribunal decided that his loyalty to his national flag did not constitute a “belief” within the meaning of the Regulations and his application failed.

Race discrimination
Much of the case law concerning racial discrimination and dress codes relates to employers’ requirements that employees wear certain clothing for health and safety reasons.

In the past, tribunals have found that dress codes, although discriminatory, may be justifiable for health and safety reasons. For example, a company’s decision to ban beards for hygiene reasons in a food factory was found to be justifiable, even though it discriminated against a Sikh worker.

However, the tribunals have made it clear that such dress codes must be implemented consistently and that any objections must be treated with care and consideration. Consequently, tribunals may not be so inclined to find the dress code is justified if its main purpose is maintaining a corporate image.

Sex discrimination
Dress codes which make specific requests of female staff could constitute discrimination under the Sex Discrimination Act 1975.

Following the 1978 case of Schmidt –v- Austicks Bookshop Ltd most tribunals still adopt a “swings and roundabouts” approach. This means that tribunals will assess a dress code as a whole, looking at whether restrictions are placed on both men and women, rather than assessing the policy with a garment by garment approach.

Consequently, a dress code that requires women to dress formally and wear a skirt or dress may be lawful if similar restraints are placed on male employees, such as a requirement to always wear a tie.

In Department for Work and Pensions –V Thompson [2004] IRLR 348, a male employee at the Jobcentre brought a sex discrimination claim for being made to wear a collar and tie when female colleagues didn’t have any such requirement.

The Employment Appeal Tribunal found that Mr Thompson had not been discriminated against. It held that a workplace dress code that requires men to wear a collar and tie and women to dress appropriately to a similar standard may not be discriminatory on the grounds of sex.

Following the Thompson case employers should be aware of restrictions placed on male employees. If their choice of clothing is restricted by a dress code in a way that is not mirrored by the restrictions placed on their female colleagues, then the code could be deemed discriminatory.

Last month a prison officer, Steve Brooks, was granted leave to sue the Prison Service for unfair dismissal after he was told to exchange his traditional shirt and tie uniform for a t-shirt and jogging pants. The new dress code was introduced by the Prison Service to help staff “empathise” with young criminals.

Mr Brooks was barred from a control and retrain course, (which is considered to be a crucial step to promotion) because he refused to wear the new “uniform” on the grounds that it did not encourage a respect for authority in inmates. The case continues.

In June of this year a Stansted Airport check in worker came to an “agreement” with his employers, Swissport, after he was suspended for turning up to work with his hair gelled in a Mohican style.

The experience in the US
In the US dress policies refer to “grooming” too and this can include things like body odour issues, perfume and hair styles.

Recent cases hitting the headlines in the US suggest that US employers may have gone too far in implementing stringent dress and appearance codes. Some employers are imposing weight restrictions, banning tattoos and facial piercings.

Earlier this year a Nevada employee with 20 years successful experience as a casino bartender objected to her employer’s new dress code because it required her to wear make up. She believed that this weakened her authority, which she needed to subdue drunken patrons who got out of line.

When she refused to wear cosmetics, she was dismissed. She brought a claim for sex discrimination, claiming that the requirement had an unfair impact on women.

Angelisa Garrett brought a claim against her former employer, Enterprise Rent-A-Car. Ms Garrett claimed that she was dismissed for dyeing her hair a shade of reddish-brown, because it was not her “own ethnic origin”.

Advice to employers
Employers need to be clear about whether or not a dress policy is needed and draft a clear one that enables them to deal with employees whose clothing may be inappropriate.

Thereafter, employers should treat any requests to dress contrary to the company dress code for religious, racial or sex reasons with respect. Employers should consider how best to accommodate reasonable requests, and do so consistently.

Ranjit Dhindsa can be contacted at rdhindsa@reedsmith.co.uk

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