The problem
Your restaurant introduces a dress code stipulating that kitchen staff should not have beards or body piercings, and that waitresses must wear black skirts. Fred, a chef, has a nose ring and refuses to remove it. Navdeep, who also works in the kitchen, is a Sikh and has a beard for religious reasons. Claire, a waitress, wants to wear black trousers instead of a skirt.
The law
Dress codes may infringe employees' rights to freedom of expression under the Human Rights Act 1998. Although employees of private organisations cannot sue directly for breach of human rights, it may be unfair to discipline or dismiss them for refusing to comply with a workplace dress code.
It may be possible to justify a dress code that is genuinely required to protect third parties or the employer's business, but only if it goes no further than is necessary and if alternatives have been considered.
Employees from a particular racial group may also be able to claim race discrimination if they are unable to comply with a dress code for cultural or religious reasons. Employers can justify a rule if it is in place for genuine and objective reasons, but must show that the requirement goes no further than necessary and that alternatives are not possible.
It is potentially unlawful sex discrimination to insist on different dress requirements for men and women. However, in some cases it is permissible to have slightly different rules for male and female employees, such as a code based on what would be seen as smart "conventional" dress for each sex, so long as, overall, the standards are the same.
Expert advice
Fred can claim that requiring him to remove his nose ring infringes his freedom of expression and therefore it would be unfair to discipline or dismiss him for refusing to do so. You would need to show why the code is necessary.
A rule preventing kitchen staff from wearing body piercings is likely to be fine if it is genuinely required for reasons of hygiene. You would also need to show that alternatives had been considered, such as covering the piercing in some way.
Finally, bear in mind that the rule might not be justifiable for piercings elsewhere on the body that are covered up by clothing and therefore not a direct health hazard.
Navdeep can claim that requiring him to remove his beard amounts to race discrimination, because he is unable to do so for religious reasons. Again, you would need to show that the rule is genuinely required on the grounds of hygiene and there is no acceptable alternative. If customers can be protected by requiring Navdeep simply to cover his beard, it would be discrimination to insist on him shaving it off.
Claire can claim that it is both infringement of her right to free expression and that it is sex discrimination to require her to wear a skirt instead of trousers. You could possibly argue that the rule was in place for genuine reasons, such as to ensure smart presentation to customers.
However, in a number of cases it has been held that a ban on female staff wearing trousers to work is sex discrimination, because trousers are now generally accepted as appropriate smart dress for women.
Beware!
Awards of compensation for both race and sex discrimination, including compensation for loss of earnings and "injury to feelings", are unlimited. It is also expensive and time-consuming to defend such claims, as well as bad business publicity.
It is, therefore, particularly risky to dismiss an employee for refusing to comply with a dress code if they might have a discrimination claim.
Employees who are dismissed for refusing to comply with a dress code that infringes their freedom of expression can claim unfair dismissal. They could also resign and make such a claim if they are disciplined for refusing to comply. An award for future loss of earnings in these circumstances can be as high as £52,600.
Check list
- Ensure that dress codes are introduced only for genuine reasons that are important to your business and that they go no further than necessary.
- Consider whether there are alternatives to the dress code that would achieve the same purpose.
- If employees complain that they cannot comply with a particular rule, make sure that you take into account their individual circumstances.
- Be particularly careful with dress codes that might cause difficulties for employees from a particular racial group or religion.
Contacts
Lewis Silkin
020 7074 8000
hazel.oliver@lewissilkin.com
Employment Law and Industrial Relations Helpline
020 7396 5100