Kate Russell is an employment law expert and author of a number of HR titles, including Off the Sick List! A qualified barrister, she worked in industry in operations, and later as an HR advisor and trainer, before setting up the business.

Dress code and appearance is always an emotive subject. Employers must also ensure that they don’t fall foul of anti-discrimination legislation, which makes direct and indirect discrimination unlawful.

Let’s take sex discrimination. Direct discrimination occurs when a person is treated less favourably on the ground of his or her gender than a person of the opposite sex either has been or would have been treated. As a result of that less favourable treatment the person has suffered some form of detriment.

Indirect discrimination occurs where an employer applies a provision, criterion or practice which puts people of a particular gender at a disadvantage, unless that practice or policy can be objectively justified. A good example is the Azmi case.

Aishah Azmi, a devout Muslim, was employed as a bi-lingual support worker at a school. Although she did not raise it at the interview, she later said she had to wear a full face veil in accordance with her religious beliefs. The school investigated to see if it could accommodate her request, but found that the children learned better when they could see her whole face. She was instructed to remove the veil when working with children, though she could wear it at all other times. Mrs Azmi refused and was suspended. She complained of discrimination on grounds of her religion.

On the indirect discrimination point, the court accepted that the school had applied a practice that put people of Mrs Azmi’s religion at a disadvantage. However, the practice was justified as there was objective evidence that when she was wearing the veil, children did not engage with her as well as when she was unveiled. The requirement was no more than was proportionate, as the school allowed her to be veiled when not teaching.

Note that this case does not mean that employers can ban full face veils in all circumstances.

When you’re introducing a summer dress code, problems can arise if you’re trying to make it equal for all. While it appears to be a relatively harmless issue, an unequal dress code policy can affect staff morale, increase tension and can potentially lead to complaints of discrimination. If employers are going to allow women to wear flip-flops and spaghetti-strap tops, then the same relaxed-rule allowances need to be afforded to men.

Comparisons are not made on an item-by-item basis. In considering whether a dress code discriminates against one gender or the other, the whole code will be considered together. In a recent case the court has said that requiring a male employee to cut his shoulder-length hair did not amount to discrimination or harassment simply because a female employee would not, in similar circumstances, have been required to cut her hair. The facts were as follows.

The Metropolitan Police’s dress code requires the standard of dress to be smart, fit for the purpose and to portray a favourable impression of the service. Hair should be neat, not cover the ears and should be worn above the collar. Long hair must be neatly and securely fastened and worn close to the head.

Mr Dansie had shoulder length hair. He reported for training with his hair in a neat bun on the back of his head. He was told to have his hair cut or disciplinary action would be taken. He complied, but complained that he had been unlawfully discriminated against because a female officer would have been allowed to keep hair of that length.

The court found that the employer’s dress code as a whole was asking its employees to display an equivalent level of smartness between men and women. The Metropolitan Police’s dress code was, overall, equally balanced between the sexes, so it had not discriminated against Mr. Dansie by requiring him to cut his hair.

While Mr Dansie was unsuccessful, having a policy of ‘no head-wear’ or ‘men must not have ponytails’ may expose an employer to a claim for indirect discrimination as it disadvantages Sikh and Hindu employees. Employers must show that a dress code requirement is justified, that the business need is legitimate, and there is no alternative means available for achieving the aim.

In the summer you might relax the dress code somewhat and say that women can wear more informal clothing to work, for example, short sleeved dresses and cardigans rather than business suits. The same relaxation must also be made for male employees. For example, trousers may be of lighter material such as linen, or shirts must have collars but may be short sleeved.

Disabled employees may not be able to comply with a dress code (for example, an employee with a neck injury unable to wear a tie). In these circumstances, employers should be sensitive in the application of the dress code. Last year a leading fashion retailer was censured for its somewhat unsympathetic approach to a disabled employee who could not meet the company’s usual dress code requirements.

Abercrombie & Fitch have a strict “look policy”, including a list of acceptable hairstyles and guidance on make up shades. Customer facing staff are expected to be aesthetically pleasing and are referred to as “models”. Riam Dean had a prosthetic arm. During the winter she was allowed to wear a cardigan to cover the joint between her skin and the prosthetic. In July 2009 she was told to work in the stock room as she was breaking the “look policy” by wearing a cardigan in the summer season.

Miss Dean was extremely upset by these remarks and complained to tribunal that she had been discriminated against on the grounds of her disability. She was awarded £136 basic compensation, £1077 for loss of earnings and £6800 for injury to feelings.

In summary, employers can specify a dress code and provided that it is reasonable and lawful, employees are expected to comply.

Key points

  • Base your dress code on business reasons and explain your reasoning. Common business-related reasons include maintaining a public image, promoting a productive work environment, or complying with health and safety standards.
  • Make sure the principles of your code genuinely reflect your business need and are neither discriminatory nor arbitrary.
  • If a part of the policy could be discriminatory, consider whether it can be objectively justified. Conducting a workplace assessment will help establish any justification.
  • Ensure that prospective employees are made aware of the policy before they join.
  • If there are concerns explore them using your grievance procedure and make adjustments where appropriate.
  • Give examples of what is suitable and unsuitable dress. For example, sandals which enclose the foot are acceptable; flip flops and trainers are not.
  • Identify any special requirements for employees who deal with the public.
  • Communicate the policy and explain what the penalties will be for breach.
  • Apply the dress code policy consistently, but make reasonable accommodation when the situation requires an exception.