Every now and then a disaffected employee takes a claim of unlawful sex discrimination in matters of dress and appearance at work to the Employment Appeal Tribunal (“EAT”). The most recent example of the genre involved a Mr Dansie, in a claim against the Metropolitan Police , who was a long-haired trainee police constable and, like many before him, failed in such a claim.
The twist in his case was that before starting his training he asked if his hair length would be unacceptable and was told that it would comply with the police dress code. Having commenced the training programme with his shoulder length hair scraped back and tied in a bun he was told to get a hair cut. Given the history of his enquiry he was perhaps justified in feeling peeved, if nothing else.
Disciplinary action was threatened if he did not comply. His sex discrimination claim asserted that he had been less favourably treated and suffered detriment and/or harassment. The tribunal rejected the claim and the EAT agreed.
In reaching its decision the EAT identified the following principles in this area
“… that a difference in treatment between the sexes on one particular aspect of the Dress Code is not necessarily more favourable treatment of a member of one sex compared with a member of the other sex. In order to determine whether an employer treats members of one sex less favourably than the other it is necessary to consider the Dress Code as a whole, even although a single provision of the Code may upset the balance of treating the sexes equally. A Code which applies a conventional standard of appearance is not in and of itself discriminatory; looking at the Code as a whole, neither sex must be treated less favourably as a result of its enforcement” (my underlining).
One might say, in order to illuminate this, that allowing men in an office to wear jeans and t-shirts whilst requiring the female employees in the same office to wear suits would give rise to discrimination claims: an extreme example but it may help to se the point being made
In devising a Code an employer would probably be entitled to look to the conventions not only of the wider world but also within the industry and the areas of work undertaken within the workplace as well. It is also helpful for an employer producing a Dress Code to consult with staff.
