Date 15 September 2008
In this stay alert we will briefly look at when an employer can and cannot enforce a dress code, potential liabilities and some practical points.
“You can’t wear that” - When can an employer dictate what an employee can wear during the course of their work?
The recent reported case of a salon found to have indirectly discriminated against a Muslim hairdresser, highlights the fine line employers have to walk. In the job interview the hairdresser was told that she could not wear her headscarf, as it was an absolute requirement that she have her hair on show. She was refused the job after she insisted on wearing her head scarf, as this was essential to her beliefs.
If you require an employee to wear certain uniform or adhere to a certain dress code, then you are essentially creating a provision, criterion or practice. If an employee is unable to adhere to the above due to her sex, disability, age, race, religion or sexual orientation, it is potentially indirectly discriminatory. You must be able to demonstrate that the requirement:
- Is a legitimate aim; and
- That the condition is a proportionate means of achieving the above aim
Anything that is overtly discriminatory, such as requiring women to wear skirts is unlikely to satisfy the above.
The risks of an employer not reviewing its’ practices in light of the above are potential claims of discrimination on the grounds of sex, disability, age, religious belief, race or sexual orientation. The practice or dress code does not even need to be written, it can be implied through a course of practice that has simply been adhered to over the years. Potential awards in the tribunal are for injury to feelings which are uncapped. In the case above, the hairdresser was awarded £4000 in a tribunal. Therefore liability can even arise before a potential candidate is an employee.
Practical points to consider are:
- Review of any requirements for a dress code or policies and consider if they are a practice that an employee could be unable to comply with on any of the grounds above
- Consider if the requirements are a legitimate aim and a proportionate means of achieving that aim
- Review your recruitment practices including advertisement of vacancies and interview questions. If a potential candidate raises an issue that they are unable to comply with a dress code, this needs to be considered and advice sought
For further information about any of the topics covered in this edition of Stay Alert, please contact Nikki Petken on 01727 798000 or by email at nikki.petken@salaw.com.
© SA Law 2008
Every care is taken in the preparation of our articles. However, no responsibility is accepted as being owed to any person or organisation who acts on the basis of information contained in them. You should obtain specific advice in respect of individual cases.