Discriminatory Dress Codes PDF

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Discriminatory Dress Codes Beyond the terms of a contract is a set of company policies that employees often have to observe, dress codes being one of them. Dress codes have a role in how a corporation is perceived by its clients - building an image through the physical appearance of the workforce and workplace is just as important as the presentation of a company’s products through visual merchandising or marketing, to an extent. The law doesn’t necessarily have the authority to set out what these policies have to be; in which sense there is no legislation regulating what employees should wear in the workplace, but the law has instruments in general for cases of discrimination against protected characteristics enlisted in the Equality Act 2010 (EqA)1. When an employer implements a dress code that is detrimental to an employee or a portion of the workforce with a common protected characteristic, it may give rise to discrimination. Why No One Seems to Like “Uniformity” While it is imperative that the workforce is presentable while carrying out its duties, the employees’ comfort and basic rights should also be taken into account when implementing dress codes. Being subjected to discomfort from wearing high heels is a common issue among female employees. Nicola Thorp had been unfairly dismissed for refusing to comply with this policy.2 This case is controversial for the fact that a. The claimant started a petition for the government to adjust the law in favour of female employees and b. The government’s response, or lack thereof.3 Besides being required to use high heels, women are also often forced to wear short skirts, and generally to follow sexualised dress codes including but are not limited to; a plunging neckline, or unreasonably tight shirts, and having to constantly re-apply makeup for example, clearly resulting in women feeling somewhat objectified. Ruth Campion claimed that in 2010 the British Airways (BA) had intentionally made its dress codes for women “sexier”, forcing them to wear high heels and suggestive makeup, as well as keeping their hair from looking frizzy.4 This is a case that was taken to the House of Commons along with Nicola Thorp and Emma Birkett’s following Thorp’s petition to ban employers from forcing women to wear high heels. In light of Campion’s case, however, s. 23 EqA can be referred to in determining whether the 1 Equality Act 2010, s. 4 2 Nadia Khomami, ‘Receptionist “sent home from PwC for not wearing high heels”’ (The Guardian, 11 May 2016) accessed 11 June 2020 3 Alice Ross, ‘High heels row: government response a ‘cop out’, says worker’ (The Guardian, 21 April, 2017) accessed 13 June 2020 4 Larisa Brown, ‘BA forced Ruth Campion to wear high-heels and make-up to look sexy’ (Mail Online, 28 June 2016) accessed 11 June 2020

high heels requirement means treating women less favourably than the opposite sex. In page 31 of BA’s uniform guidelines, men are strictly required to wear black formal shoes and are prohibited from wearing trainers on duty.5 While these enclosed leather shoes are not exactly as uncomfortable as high heels, the dress codes in essence for either sexes are equally conventional for the workplace. In addition to that, according to an article published in BBC News, Campion mentioned that air hostesses were allowed to change to flat shoes once the passengers were all seated, which indicates the employers may in fact have recognised the safety risks involved in wearing heels during the flight.6 On that note, a strict requirement for women to wear heels could put a company at risk of criticisms more than litigation, since the government expressed in 2017 that the law was adequate and did not need changing at the moment,7 although thanks to Thorp’s petition, the potentially discriminatory and detrimental nature of the dress code had been widely acknowledged more than ever. While it isn’t necessarily a detriment by default, it does pose a threat to the well-being of women who have to carry heavy objects, run up and down the stairs, or climb ladders on duty. The more serious discriminatory dress code for women compared to, and usually paired with high heels is the sexualisation of their appearance, which was briefly mentioned above. Sat alongside Nicola Thorp and Ruth Campion was Emma Birkett who was told by her employers to wear short skirts and unbutton her blouse.8 While the law already recognises that this likely amounts to sexual discrimination and can be unlawful, it should be noted that this is still a common problem that female workers/employees face especially in minimum wage jobs. Male employees have brought claims against particular dress codes seemingly discriminatory as they were not imposed on their female colleagues, such as policies on hair maintenance in Fuller’s case,9 which can be compared with Smith v Safeway Plc (1996).10 In both cases, it was ultimately held that the claimants were not treated less favourably, as despite the difference in the way the policy was implemented between male and female employees, it essentially was for the one aim that is to maintain cleanliness in the workplace. The ratio for these cases was first established in Schmidt,11 that the dress code doesn’t have to be identical for both sexes and instead should be equally conventional for work. 5 ‘Uniform Guidelines’ (British Airways, June 2015) accessed 14 June 2020 6 ‘British Airways worker felt “prostituted” by dress code, MPs told’ (BBC News, 29 June 2016) accessed 12 June 2020 7 Jessica Dye, ‘UK plans no change to dress-code law after high-heels petition’ (Financial Times, 21 April, 2017) accessed 11 June 2020 8 Ibid 4 9 Fuller v Mastercare Service & Distribution (2001) UKEAT 0707_00_2409 10 IRLR 457(CA) 11 Schmidt v Austicks Bookshops Ltd (1977) IRLR 360, EAT

On the subject of gender-specific dress codes, Schmidt as an authority paved the way for tribunals to prevent “flood gates” from opening in cases where there may be discrimination prima facie on grounds of sex.12 With similar facts, Cresswell’s case was concluded differently because the claimant’s comparator, male employees, weren’t subjected to a similar dress code hence the dismissal amounted to sex discrimination.13 It can be also seen in Department for Work and Pensions v Thompson (2004)14 that cases on discriminatory dress codes for men involve the principle established in Schmidt, for which the most sensible explanation could be the fact that men have very limited options when it comes to attires overall compared to women and dressing “smart” more often than not requires men to wear formal clothing, (e.g. a suit and tie), therefore a more specific dress code for men can be perceived as limiting what little option they have to begin with. A woman claimed she was sexually discriminated against in Cootes v John Lewis Plc (2001), by having to wear a uniform she simply didn’t like, that her male colleagues were otherwise not required to wear. This case exemplifies what “opening the floodgates” would be like had the case of Schmidt been completely overruled by it but thankfully the tribunals held there was no discrimination. Claims of discriminatory dress codes against religion can also be commonground, and are such that most employers try to avoid them to the best of their abilities. The case of Eweida is notable for making it from the Employment Tribunal and subsequent appeals,15 all the way to the European Court of Human Rights (ECHR) against the U.K.16 The tribunals and the Court of Appeal held that the BA’s prohibition on visibly wearing a Christian cross necklace on duty did not amount to discrimination, while the ECHR believed it was a violation of her rights under Article 9 of the European Convention of Human Rights. It can be understood from the facts of the case that the employers did not ask Eweida to take off her necklace per se, but to keep it hidden. Notwithstanding, this can (to some) entail a less favourable treatment towards Nadia since in contrast to a mere necklace, others were permitted by the employers to wear headscarves at work because ‘wearing such garments is a requirement in some faiths’. As much as the tribunals might have failed to observe a more inclusive approach to this case, the necklace turned into a problem the moment Nadia was not satisfied with simply wearing it - it had to be on full display. Azmi v Kirklees Metropolitan Borough Council sheds some light on the role of dress codes in relation to religious garments.17 In the claimant’s line of work, her employers saw fit to ask that she remove her veil that covers all of her face but her eyes, as body language and facial 12 Dansie v The Commissioner of Police for the Metropolis EAT/0234/09 13 Stoke on Trent Community Transport v Cresswell (1993) UKEAT 359_93_0712 14 IRLR 348 EAT 15 Eweida v British Airways plc [2010] EWCA Civ 80 CA 16 Eweida v United Kingdom [2013] ECHR 37 17 (2007) IRLR 434 (EAT)

expressions are important for her students to be able to respond well to her whilst teaching. The tribunals held that a non-Muslim would have been treated the same way for wearing a niqab hence there was no discrimination against Azmi on grounds of religion. Similarly, prohibition of wearing headscarves at G4S did not amount to direct discrimination, according to the European Court of Justice, under Art. 2(2)(a) of Directive 200/78 but might constitute indirect discrimination under 2(2)(b) should the aim of the dress code fail to justify the blanket ban, in Achbita’s case. The case of Bougnaoui can be compared to the former based on the facts. The ECJ decided that respondents have discriminated against the claimant when she was dismissed for wearing a headscarf following a complaint by a customer. The difference between the cases is that the blanket rule was neutral and applied to everyone in Achbita’s case, whilst the banning of headscarf was presumably an isolated incident that was in response to the customer in Bougnaoui’s. A less common form of discrimination that takes place in the workplace, but is proven to be an existing problem, is discrimination against disability. Dean, a law student won the case against a popular retail company for constructive wrongful dismissal, after they have kept her away from the field of vision of potential clients and made her work in the stockroom because her prosthetic arms were not fitting for the image that the brand stands for. While the tribunal were not certain that the detriment was direct disability discrimination, the respondents were found to have unawfully harrassed the claimant.18 A new dress code guideline was put forward in 2018 which then received mixed responses from the general public.19 To the relief of presumably the majority of women, high heels are no longer as big of an issue as it used to be prior to the changes made, along with other gender-specific dress code policies such as nail polish, make-up, and other grooming requirements strictly for women. Moreover, it has seemingly loosened up the policies to allow freedom of expression for individuals who were likely to be discriminated against on grounds of religion and gender. However, there are others who are not the least bit impressed. Articles have since surfaced on the internet and newspapers pointing out how miniscule the changes made were to the guidance, and are appalled by the fact that the greatest efforts were put into conducting a research on how harmful high heels can be when it was supposed to be common knowledge ab initio.20 Other than that, the modifications accomplished apparently nothing more than emphasizing on what already exists in the EqA - anything amounting to less favourable treatment towards employees is likely to constitute direct discrimination and be unlawful - which means the law was just to be reinforced, but in writing elsewhere. 18 Dean v Abercrombie and Fitch (2009) ET Case no. 2203221/08 19 ‘New dress code guidance published’ (CIPD HR-inform) accessed 16 June 2020

20 ‘Dressing Down the UK Government’s Dress Code Guidance’ (Keystone Law, 1 August 2018) accessed 17 June 2020

The B.A.M.E. May Have it Worse Dress codes are revealed to predominantly discriminate against employees on grounds of sex and religion, but those are not the only protected characteristics that can be predisposed to it. This policy can be potentially racist as well. On the surface, it would seem that people of colour are affected by the dress codes in the same extent caucasians are; women of all skin tones and/or origin would be forced to wear heels, the same attire, and groom themselves the exact same way while men of all skin tones and/or origin would be required to dress in the same fashion. However, there are a few disadvantages being a person of colour has that caucasians are less likely (if not at all) to struggle with when subjected to a particular dress code policy. While existing legal cases for this form of discriminatory dress code are scarce, it would be appropriate to mention the Race Relations Act was introduced in 1965 with the aim of putting an end to racial discrimination, and the Equality Act 2010 takes upon that same goal to this day. The rarity of case law surrounding this issue does not disprove its existence but rather possibly proves that the jurisdiction’s approach to racism, and other forms of discrimination in the workplace is inadequate. People with naturally more melanin than other people have darker complexions and thicker strands of hair, so it’s safe to say that brown-skinned people struggle with hair maintenance. As a result, where dress codes require employees to have well-kept hair, these people are forced to hide theirs in some way, which faintly explains why most of them wear wigs or weaves. Not to mention most corporations are opposed to wearing dreadlocks or cornrows in the workplace as these hairstyles are not considered neat and in line with “smart” dress codes.21 This policy, while it affects employees, also extends to students and has given rise to a claim for discrimination on grounds of race in SG vs. St Gregory’s Catholic Science College .22 The claimant was an AfricanCarribean student that had cornrows, a hairstyle that was banned in the college in question, and took this matter to court for discrimination on grounds of race and sex, as it appears that the opposite sex was allowed to wear their hair in cornrows. While the High Court dismissed the sexual discrimination claim, it was nonetheless held that the dress code was discriminatory against people of colour. Aside from hair maintenance, there could be situations where dress codes would require female employees to wear a specific make-up pallet. At first glance, it would seem innocent. Women of colour, however, may struggle to comply with ease as the pallet might not necessarily be compatible with their skin tone. The same issue arises from requiring women to wear “skin-

21 ‘Are hairstyle requirement in dress codes discriminatory?’ (Croner-i, 6 March 2019) accessed 15 June 2020 22 EWHC 1452

coloured” tights. This was briefly mentioned by Jones in the House of Commons debate.23 The tights are not “one colour fits all” and as a result would typically not suit all women of colour. Although of course, not all employers go that extra mile to ensure the presentability of their employees, situations like this show how restricting and hard to follow some company policies can be. Other minorities can be on the receiving end of discrimination, including ethnic groups. The Claimants turned to the Commission for Racial Equality to bring forth their case after the respondents have discriminated against them for refusing to cut their hairs and take their turbans off. The House of Lords during the appeal aimed to discern whether Sikhs are a race or not and concluded with the decision that Sikhs do fall under the Race Relations Act as an ethnic group therefore the dress code that respondents expected the Mandla to comply with were racially discriminatory. Back in 2011, there was an outrage over a dress code policy that was implemented to taxi drivers in Lancashire.24 A taxi company called Pendle had mostly Asian employees, who were as a result greatly affected by the policy. People of this particular ethnicity wear traditional garments almost on a daily basis (sari, dhoti, turbans, shalwar kameez, etc.) and still do, so it would make sense that cases like Achbita and Singh are common. Cases where the dress codes are found to be discriminatory against one’s religion or beliefs can be cases of racial discrimination as well. Malik v British Home Stores (1980) confirms this theory.25 The claimant was Pakistani and of Islamic faith, two characteristics that can easily be identified as nationality and religion respectively. She went to a job interview that would have otherwise gone well until the interviewer told her she would be required to wear something her religion does not allow her to. Because it is a detriment to potentially no one else but her for being Muslim, the Employment Tribunal held that the respondent’s action amounted to indirect racial discrimination under s. 54 of the Race Relations Act. Likewise, the Mandlas’ case can support this theory. There seems to be a trend presenting itself in these cases where what is considered normal is not being a minority, and the frustration with the issue surrounding dress codes could be justified, as these policies appear to be less than inclusive. The very features that these dress codes are trying to restrict are mainly traditional and personal elements - religious and traditional garments, hairstyles - while simultaneously encouraging employees to choose status over comfort. For people who still wear traditional (not religious) garments regularly, the requirement to dress smartly for a certain line of work should only be a slight inconvenience. In light of GB’s case, the history of cornrows was briefly discussed in the litigation process, its links to slavery and

23 HC Deb 6 March 2017, vol 662, col 197 24 John Livesey, ‘Pendle cabbies face Asian clothing ban’ (Lancashire Telegraph, 10 March 2011),

25 ET/2901/79

how it had “intergenerational values”.26 The issue: Before 2017, bringing a claim to the Employment Tribunal alone was worth an outrageous £1,200. This had potentially made it difficult and nearly impossible for injured parties to at least be heard, which then could have been the reason why the law is deemed to be outdated by the masses. Fortunately this has changed, and gave employees a fighting chance in challenging the authority that employers tend to misuse. To Conclude Considering some changes have already been made to the dress code guidelines, some can agree that the law is evolving and becoming more progressive, even at a glacial pace. Nevertheless, more is expected of it. The majority of workers, and the rest of the laymen, still believe that employers currently have almost the same amount of freedom to impose any kind of potentially discriminatory and detrimental policies onto their employees as they have prior to the adjustments the Committee has made with the dress codes in particular. On the other hand, the importance of dress codes is not forgotten. Inasmuch as the comfort and safety of its workers should be a corporation’s priority, image sells, and the overall appearance of the workforce combined with the atmosphere in the workplace play a significant role in being able to make the business thrive. The Equality Act offer much to people with protected characteristics, however it could be said that it still is not at its best performance

Bibliography Primary Sources UK Cases Cootes v John Lewis Plc (2001) UKEAT 1414_00_2702 Dansie v The Commissioner of Police for the Metropolis EAT/0234/09 Department. for Work and Pensions v Thompson (2014) IRLR 348 EAT Eweida v British Airways Plc (2010) EWCA Civ CA Eweida v United Kingdom [2013] ECHR 37 Fuller v Mastercare Service & Distribution (2001) 26 Adam Wagner, ‘Hey, teacher! Leave those cornrows alone’ (UK Human Rights Blog, 20 June 2011) accessed 17 June 2020

Malik v British Home Stores (1980) Schmidt v Austicks Bookshops Ltd (1977) IRLR 360, EAT SG v St Gregory’s Catholic Science College (2011) EWHC 1452 Singh v Greater Manchester Police Smi...