Are your dress code requirements discriminatory?

Employers often decide to implement a dress code to ensure staff maintain a professional image at work that reflects well on the organisation. Although this practice is not necessarily unlawful, certain requirements could qualify as discriminatory, and employers are encouraged to cast a critical eye over their existing dress codes to determine where this may be the case.

Under the Equality Act 2010 it is unlawful for employers to discriminate against staff on the basis of a protected characteristic. This means individuals cannot be treated any less favourably or placed at a disadvantage due to personal factors such as their race, age or gender and employers must take this into consideration when constructing their dress codes.

Government guidance was released in 2018 which confirmed that although dress code requirements for men and women may differ, the standards imposed must be ‘equivalent’ and any less favourable treatment ‘could’ qualify as discrimination. This means any requirement for women to wear high heels, skirts or make-up is unlikely to stand up to a legal challenge in most circumstances. This is sure to have influenced Virgin Atlantic’s recent decision to remove the obligation on female cabin crew to wear makeup at work.

The same concept will apply to the topic of hairstyles and employers are advised to avoid any unnecessary restrictions such as preventing men from having long hair, or staff from wearing it in certain styles such as afros or dreadlocks, as these can be associated with the protected characteristics of gender, religion or race. For this reason, many employers simply ask that staff keep their hair professional and tidy, avoiding the potential issues that can occur when particular styles are forbidden.

Employers should also give consideration to how dress codes may impact transgender staff. These individuals should be allowed to follow the organisation’s dress code in a way which they feel matches their gender identity, therefore if different uniform options are available they should be supplied with an option that best suits their needs.
Some employers may have a blanket ban on staff wearing personal jewellery at work, however this again could venture into the realms of discrimination. Government guidance suggests that individuals should be free to wear religious symbols and jewellery that do not interfere with their work, and previous rulings by the ECJ have suggested that a failure to allow this could qualify as a breach of their human rights.

The downfall for a lot of employers is that they feel that they can objectively justify certain dress code requirements by arguing that they have a business reason for it. Although employers can avoid indirect discrimination if they can prove that a certain requirement is a proportionate means of achieving a legitimate business aim, in most cases requiring women to wear high heels, or men to have short hair, is unlikely to stand up under a legal challenge.
Whilst dress codes may not always appear discriminatory on the surface, employers are encouraged to dig deeper into the various requirements and consider how certain staff may be disproportionately affected by these.

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