Getting dress code policies right
17th November, 2015
In the lead-up to Christmas, employers often consider relaxing their dress code policies to allow for some festive cheer and Christmas jumpers.
This update looks at the importance of dress code policies, discrimination risks, tips for success and relaxing policies over the festive period.
Why have a dress code?
A dress code policy is a useful tool in an employer’s handbook. It sets out the standards the employer expects of its employees and warns of the consequences in failing to adhere to them.
With first impressions being made in seconds, it is important that an employer maintains control over how employees present themselves especially where uniforms are used for brand identity. Health and safety can also dictate the uniforms employees are expected to wear.
The main risk with enforcing dress code policies is indirectly discriminating against employees. Indirect discrimination in this instance occurs where:
- You apply a dress code policy to all employees, however
- The policy puts some employees who share a certain protected characteristic at a particular disadvantage when compared to other employees, and
- You cannot show that applying the policy is justified as a proportionate means of achieving a legitimate aim.
The following are examples of where an employer has succeeded in showing that their dress code policy was justified:
- An employee who worked as a nurse was prevented from wearing a crucifix due to health and safety of staff and patients. (Chaplin v Royal Devon & Exeter NHS Foundation Trust)
- An employee who worked as a bilingual support worker was instructed to remove a veil which covered all but her eyes. This was proportionate as a means of providing the best quality education. (Azmi v Kirkless)
- A prison officer was prevented from wearing a kirpan (Sikh ceremonial dagger) inside a prison even though the Sikh chaplains were allowed. This was justified on the basis of ensuring the safety and security within prisons. The tribunal considered the discriminatory effect (only two people), the number of assaults per year in prison with a knife or blade (over 200), the differing roles of the prison officers and chaplains (including the prisoners’ perception) and the fact that the employer had explored alternative solutions. (Dhinsa v Serco and another)
- An applicant to work in a nursery was told that she would only be allowed to wear a jilbab (garment covering the body from the neck to ankle) provided that it did not present a tripping hazard. This was not discriminatory and would have been justified. (Begum v Pedagogy Auras UK Ltd)
If your employee makes a request which is contrary to your dress code policy but which could relate to a protected characteristic, careful thought should be given as to whether there is a legitimate business reason for applying the particular policy. If there isn’t, then the request should be granted.
Requests should be approached with sensitivity. If you have an employee who has made such a request then our employment team can help you work through this process.
Tips for operating a successful policy
Below are some tips for keeping within the law when implementing policies:
- Set clear standards expected from your employees
- Set out clear consequences of failing to comply with the policy, i.e. disciplinary action
- Communicate the dress code policy to employees so that they are aware of the standards they are required to meet
- Avoid having blanket bans unless you have reasons which would justify that decision, such as health and safety
- Allow some flexibility to deal with requests on a case by case basis
- Deal with issues as they arise: you are within your rights to ask employees to for example, cover up tattoos or visible piercings if there is a reason behind this
- Be aware of discrimination issues: these usually concern an employee’s religion, belief or race but can in some instances relate to disability or sex
- Policies should apply to men and women equally, although there may be different requirements they should have the same overall effect
- Consider the reasoning behind the policy so that you can justify your decision if required
- When considering uniform requirements you may want to consider consulting with employees to ascertain whether the policy is acceptable to them and to flush out any potential issues.
Do they know it’s Christmas time at all?
Since Colin Firth donned a Christmas jumper in Bridget Jones’ Diary the craze has been adopted as a festive tradition. Employees working in festive periods almost expect employers to afford some privileges and small concessions, such as allowing a Christmas jumper day, can really lift employee mood and in consequence, hopefully their work ethic.
While employers may be happy to relax dress code policies on some occasions, clearly some standards should still be maintained and employees should avoid any slogans which may be offensive to other employees. A ‘Naughty Festive’ jumper range aimed at office staff may create issues with slogans such as ‘Who do I sleep with to get a promotion’ and ‘Bad Santa’.
While festive dress codes are good fun, you should avoid making them compulsory and look out for any employees who may cause offence to others in the way that they dress. Remember that not all employees celebrate Christmas so be mindful of varying cultural beliefs to avoid employees feeling segregated.
How can Ward Hadaway help?
If you have any questions on any of the issues raised or if you would like us to look at your policies to assess whether they meet your business needs please do not hesitate to contact myself or a member of the Employment Team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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