Employers must get smart over dress code

APPEARANCES can be deceptive. It is said that many interviewers decide within two minutes whether a candidate is right for the job or not. In that time there can be little information to go on other than how the person looks and behaves. Most candidates will have done their best for the interview - a suit - and often a tie, if the candidate is male - or a similarly smart alternative.

Whether or not, in these days of increasingly informal dress, they will maintain the standard, once they are in the job, is another question. This is one reason why some organisations have a dress code. But employers should be careful that this solution to keeping the workplace smart doesn’t draw them into the potentially expensive issue of sex discrimination.

Last year a male employee at a job centre won a case, in which he claimed he was discriminated against because he was required to wear a collar and tie while his female colleagues did not have to dress to a similarly smart standard.

Matthew Thompson was initially awarded 1,000 in compensation by a tribunal. A flurry of similar claims, almost 7,000, were then lodged by his colleagues against his employer, the Department for Work and Pensions. A very broad calculation suggests a potential total compensation bill of nearly 7 million.

The DWP appealed the decision and an employment appeal tribunal decided that if a dress code requires members of one sex to wear a particular type of clothing that is not required of the opposite sex, it doesn’t necessarily amount to sex discrimination.

It said the issue needs to be decided in the context of the overall aim of the dress code, which was that men and women in job centres should dress in a professional and businesslike way.

The point the employment tribunal should have considered in the original case was not whether a higher level of smartness is required from men than women, because of the dress code, but whether the same level of smartness - "professional and businesslike" - required of the women can only be achieved by the men if they wear a collar and tie.

Another employment tribunal has been set the task, applying conventional, contemporary standards of dress, of deciding if that is the case or not.

It is possible they will have to look at photographs of Mr Thompson’s female colleagues, first to assess the standard the DWP applies to them. Depending on whether or not it finds that men can achieve that standard without a collar and tie, it may or may not decide that the DWP’s dress code was discriminatory.

Any employer who wishes to avoid getting tied up in knots about this issue may think the solution is to not have a dress code. Yet many employers will probably still want to exercise some degree of control over how their employees look.

For the sake of pleasing their customers many will want sales and any other staff who meet the public, to dress in a conventional and business-like way. It would be understandable for the DWP to want those employed at the job centre to dress like that, in order to set an example to clients. Employers may also hold the view that staff should be clean and smart because it is good for morale, whereas sloppy dress denotes sloppy attitudes and inefficiency. In certain types of employment health and safety and hygiene will also be factors in what employees wear.

Whatever the reason, trying to exert control in this way without implementing a dress code, setting out standard rules on what is and is not acceptable may put employers at risk of claims of discrimination or unfair dismissal. Indeed, employers are often advised to make sure rules in dress codes are sufficiently detailed to reduce the risks of such claims.

That may take them into a world of contentious fashion issues such as the rights and wrongs of ponytails, earrings, tongue studs and micro skirts. One essential issue any employer introducing a dress code, or reviewing an existing one, must address is the risk that it discriminates against men or women. To assess if that risk is genuine, it might help to consider three connected questions.

First, does the code set out types of dress or other aspects of physical appearance such as hairstyle or jewellery that are different for male and female employees, such as suits for men and skirts and jackets for women, or hats as against hairnets when handling food?

If the answer is yes, what is the reason for the dress code and what is the overall aim that the employer is seeking to achieve by implementing it?

Finally, applying conventional, contemporary standards of dress, can the overall aim only be achieved if those different requirements set out in the code are complied with?

If the answer to the last question isn’t "yes" then there may be a risk of successful sex discrimination claims by employees. The employer might be advised to change the code to reduce that risk.

In making these changes, or starting to draw a code for the first time, it would almost certainly do no harm and it may help lay the ground for imposing the standards, if the employees themselves are consulted, having first set out the clear aims of the code and the reasons why they are important. Employers’ eyes may even be opened to the broader, and perhaps, more up-to-date options of dress that will still achieve their overall aims.

While appearance isn’t everything, it could be a source of grievance for staff and, ultimately, costly discrimination claims, if the rules aren’t clearly non-discriminatory.

• Alan Masson is a partner with MacRoberts, Solicitors, and an accredited specialist in employment law.