Laura McClinton: Dress codes in the workplace – a fashion faux pas or a necessity?

Laura McClinton: Dress codes in the workplace – a fashion faux pas or a necessity?

Laura McClinton

With the Scottish and UK governments having relaxed their “work from home wherever possible” message, it begs the question of what the return to the office will look like for many, writes Laura McClinton.

We have previously written about the likelihood of flexible working requests. Another topic that will no doubt cross the desks of HR teams as employees move back to the office is office wear post pandemic and how employers can manage the return to work wardrobe.

The evolving office dress code

There is no specific UK legislation with regards to dress codes for employers. Employers are, however, permitted to set rules around the dress and appearance of their employees. Many employers therefore have a dress code policy outlining their expectations. But, as with fashion trends, what is deemed appropriate for office wear has changed over the years and even more so with the pandemic and resultant shift from office to home working.

In March 2020, many of us hung up our office attire not realising that it would be nearly two years before we would need to try them on again to check they still fit before returning to the office. Many employees say they feel more prepared and motivated for their work day when they have their business attire on. But the pandemic and working from home over the last nearly two years has changed employees’ attitudes to how they dress for work. More formal office wear has been largely abandoned with a transition to leisure or “lounge” wear instead.

As well as the practicalities of implementation of hybrid working, employers may wish to consider adopting a less formal dress policy to reflect the more relaxed “office” attire during the pandemic. One example which employers may consider adopting (and which Burness Paull adopted in 2019) is a “dress for your day” policy, the basis of which is that on days where you are not meeting clients’ or do not have any formal work appointments employees can follow a business casual dress code.

Employers should ensure that any dress code policy is reasonable and takes into account any relevant considerations in relation to health and safety and visibility to customer/ clients.

What is acceptable to wear, or not, should be made clear in a dress code policy which should be regularly reviewed (alongside all policies) to ensure it remains fit for purpose and is brought to the attention of employees.

Legal risks

There have been various employment tribunal decisions in relation to how employees have been dressed which highlight the associated legal risks and which are worthwhile remembering…

In the Department of Work and Pensions v Matthew Thompson, it was held it was not discrimination when men were required to wear a shirt and tie but women were not. This was because the overarching requirement was that all employees were to be dressed in a professional way and this required applying contemporary standards of conventional dress wear. In the circumstances, male employees were required to wear a shirt and tie and female employees to wear a blouse.

In Hutcheson v Graham and Morton Ltd, a senior female employee was required to wear a nylon overall alongside the rest of her team. However, male managers and buyers were allowed to wear suits. The employment tribunal held that this was discrimination and that the employee had suffered a detriment as wearing overalls indicated that she had a lower status to the public than her male colleagues.

In Catharell v Glyn Nuttall Ltd, it was held that an electrician had been unfairly dismissed for refusing to cut his hair. The employment tribunal considered that, if his hair length did not have a detrimental effect on the business or his performance, then it was up to him as to how long to wear it. The tribunal considered that the employer’s own taste was not a sufficient reason for imposing such a requirement on employees. However, in contrast, in Smith v Safeway, male and female food handlers were required to wear hats and were prevented from having unconventional hair styles. Male employees’ hair length was to be no longer than shirt-collar length but women could have longer hair as long as it was tied back. It was held that this was not discriminatory as it was applying a common conventional standard.

In 2016, Nicola Thorp gathered media attention after she was sent home on her first day as a receptionist for PwC without pay as she was wearing flat shoes and not the required 2-4 inch high heels. Ms Thorp pointed out that there was no equivalent on men to wear heels. Following this, an online petition was started by Ms Thorp and gathered more than 150,000 signatures triggering a debate on dress codes in Parliament. In May 2018, the government Equalities Office published the Dress codes and sex discrimination – what you need to know guidance in response to the petition including advice against any requirement to wear high heels and other gender specific requirements.

When an employer is considering implementing or changing an existing dress code policy, is it essential to ensure that this is not discriminatory in any way and it otherwise justifiable and proportionate. This includes insuring that any appropriate religious and cultural dress is permitted.

If you are looking to implement a dress code policy, or adjust one already in place, please do not hesitate to get in touch.

Laura McClinton is a solicitor at Burness Paull

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