LEGAL
Talk: Legal
Stripping it back to understand dress codes
This summer has seen dress codes being re-written by Royalty, MPs and now the Anglican Church, leaving many wondering where they stand in the workplace.
First, the Queen conducted the State Opening of Parliament in a hat and coat, instead of traditional gown and crown. Then the Speaker of the House declared jackets and ties unnecessary for male MPs. And now the Synod, the Church of England’s ruling body, has allowed clergy to ditch their traditional robes when taking communion or conducting weddings, funerals or baptisms. But there are still situations where rigorous dress codes are maintained, notably the ‘almost entirely white’ carefully guarded clothing rule that the All England Club imposes during the Wimbledon Grand Slam tennis tournament. While many have resisted, players have been forced to change or borrow kit when told to remove offending colours or flashes. When it comes to dress codes in a workplace, there are three main areas where employers have obligations: gender, religion and disability. Health and safety issues must also be considered, such as where employees are required to purchase specific clothing. Here, employment law specialist Steve Esmond of Elmhirst Parker Solicitors outlines the main issues employers must consider when creating and implementing dress code policies.
Gender discrimination: The treatment of receptionist Nicola Thorp, who was sent home without pay for failing to comply with a requirement to wear heeled shoes, won much coverage, leading to the matter being debated in Parliament. The Equality Act 2010 makes it illegal to discriminate against someone with a protected
characteristic; in the context of dress codes, gender, religion and disability are the most relevant. If a man would not be required to wear high heels, a requirement for women to do so may be discriminatory on the grounds of sexual equality.
This does not mean that detailed dress codes may not differ for men and women, but they must be broadly similar in their intended effect and sanctions for breach should be the same.
Religious discrimination: The topic of religious
discrimination is complex and two recent cases have added to the confusion among employers. Nadia Eweida, a practising Coptic Christian, lost her job with British Airways after refusing to keep her crucifix necklace out of sight when in uniform. The European Court of Human Rights (ECHR) said that Ms Eweida’s right to express her religion had been breached. The ECHR said that a fair balance had not been struck between her desire to communicate her religious belief and her employer’s wish to project a corporate image without religious connotations.
In a recent case over the wearing of Islamic headscarves, the European Court of Justice (ECJ) decided that employers could have a policy of religious neutrality in their dress codes, ruling that prohibiting the wearing of a headscarf was not direct discrimination, although it could amount to indirect discrimination.
Employers must strike a balance between the company’s requirements and the employee’s right to practice and express their religion.
Health and safety: Health and safety law requires employers to conduct a workplace health and safety risk assessment for all workers.
However, the risks associated with 42
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many aspects of dress code may be overlooked in such assessments. For example, high heels are known to lead to joint pain, back problems, bunions and may contribute to sprains and falls. As well as being unlawful under the Equality Act, requiring female employees to wear high heels may breach health and safety law.
Risk assessments are also essential if an employer is looking to impose specific requirements such as a ban on jewellery. If there is a health and safety risk, for example where jewellery could be caught in potentially dangerous machines, a ban may be justified.
Uniforms and the
National Minimum Wage: Where employees are required to wear a specific form of dress or uniform at their own expense,
employers need to ensure the cost does not impact on National Minimum Wage compliance. The retailer Monsoon found itself unintentionally breaching the regulations because it required staff to buy and wear items from the retail chain’s clothing range. HMRC investigated and said that as the wearing of Monsoon clothes was compulsory, the amounts that employees spent on clothes for work should have been deducted from their pay before calculating whether National Minimum Wage was received. For Monsoon, this resulted in back-pay of more than £100,000 to reimburse employees, and a fine of £28,147.81.
This applies equally where a loose policy is in place, for example requiring a certain colour to be worn.
*This is not legal advice; it is intended to provide information of general interest about current legal issues.
EMPLOYMENT LAW KNOW YOUR RIGHTS
We provide practical advice on all employment law issues including: • Contracts • Tribunals • Discrimination
• Minimum Wage • Maternity/Paternity Leave • Redundancy • Dismissal
Telephone or e-mail Steve Esmond for free initial advice
17/19 Regent Street, Barnsley, S70 2HP (also in Selby and Sherburn-in-Elmet)
www.elmhirstparker.com sesmond@elmhirstparker.com
01226 282238
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