Is failing to follow the dress code misconduct?
The Dorchester, a five-star hotel in London, is yet another company to make the news for threatening staff with misconduct proceedings for not following a strict dress code (see our other articles here) and here. It has been reported that due to complaints about staff hygiene, female staff have been issued a dress code which asked them not to turn up to work with oily skin, bad breath or garish makeup. The dress code also requires that the female workers shave their legs, have manicured fingernails and to ensure that they do not have body odour.
The law of dress codes in the UK
Dress codes will vary from job to job. They may be set out by the company to represent the way in which it wants to present themselves to customers (eg business casual), or to create a business-like ethos (ties and pinstripe) or it may be for health and safety reasons (eg hair-nets and boots). It is commonplace for serious or repeated breaches of the dress code to be punished with disciplinary proceedings for misconduct.
Dress codes however should comply with the non-discrimination rules set out in the Equality Act 2010; these apply to age, disability, gender reassignment, religion or belief, sex or sexual orientation.
The law requires dress codes to be imposed to an equal degree. They may be different for both genders if this is consistent with societal expectations. So it is not automatically sex discrimination to make women wear skirts and men trousers. Or to ban men from wearing make-up. The courts will give a certain amount of discretion to employers in regards to dress code policies.
In fact, this runs contrary to the usual point of discrimination law, which is to prevent societal expectations from giving employers a defence. An employer cannot, for example, refuse to hire BME staff on the basis that its clients wouldn’t approve. In one case, a Mr Jarman won a case for discrimination for being disciplined for misconduct for wearing an earring, when female colleagues were able to wear earrings without facing any action.
Legal action to be taken against the Dorchester?
Employment lawyers warn employers that that dress code policies should be “reasonable and proportionate in nature” and should be related to the work that is being carried out. That is, whilst it might be okay to ask a receptionist to wear make-up, you wouldn’t ask that of a plumber.
Employment law provides that dress codes can be different in nature as long as they don’t impact disproportionately on one sex. However, in this case the female employees (who are being paid the living wage) are not given any additional pay to reimburse the cost of manicures or make-up. This is an argument that we look forward to seeing run at an employment tribunal.
By Emma Bonehill
Image used under CC courtesy of Trec_Lit