Work, Dress Codes, Law and Risk

Work, Dress Codes, Law and Risk

If an employer asks an employee to conform to a dress code at work is an employer at risk?

The answer is potentially, yes, in that there is a potential for discrimination if the dress code conflicts with an employee’s protected characteristic under the Equality Act 2010 and this could lead to a direct or indirect discrimination claim.

The Equality Act 2010 provides protection against discrimination which relates to certain listed characteristics which people may possess. Some protections relate specifically to only one of those characteristics. Others provide the same protection in relation to all the characteristics, which are collectively referred to as ‘the protected characteristics’.

Each protected characteristic is listed and (with the exception of pregnancy and maternity) defined in the Act regarding age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Within reason, an employer can place restrictions on the clothing of its staff – although onerous and unreasonable restrictions may have a legal and a practical impact:

•  legal, in that imposing new and unreasonable restrictions on employees with qualifying service for unfair dismissal (2 years) may create a risk of unfair constructive dismissal claims due to a breach of the implied term of trust and confidence;

• practical, in that onerous restrictions may have an impact on employee recruitment.

There have been reported cases in the press concerning the right to religious freedom where corporate image was second place to religious freedom (Eweida v British Airways plc [2010]). The case of Chaplin v Royal Devon & Exeter NHS Foundation Trust [2011] EqLR 548 went all the way to the European Court of Human Rights (ECtHR) and in contrast, the health and safety of nurses and patients was held paramount and a ban on jewellery was permitted by the employer.

What about ‘dress down Fridays’?