Virgin Trains’ new blouse has reignited the issue of employee dress code. Photograph: Tim Anderson
Dress codes at work have always been a thorny issue. Can your employer force a dress code no matter what, or are there constraints on their ability to do so? The subject is again under the spotlight, with reports that Virgin Trains’ female staff have rejected their new uniform as it includes a “flimsy” and “revealing” red blouse that they believe would allow passengers to see any dark coloured underwear.
The firm’s business support director, Andy Cross, has reportedly responded to the concerns, writing on the Virgin staff website: “It’s important that our people feel comfortable and so we will be issuing vouchers in the next few days for ladies to buy undergarments to wear under their blouses.” Apparently the vouchers are to the value of £20 and the implementation of the new uniforms has been put back.
There have been some previous colourful examples where employers have similarly sought to impose a dress code that only affected female workers. In one such case in 2009, a Muslim cocktail waitress was awarded £3,000 compensation on the basis that she had been discriminated against because her employers were forcing her to wear a tight fitting red dress during the summer months at work. She had argued that it made her “feel like a prostitute”. The tribunal found that as the male staff were not required to switch to similar “brightly coloured, figure hugging garb”, the dress code plainly related to her sex and was gender specific.
And two years ago, a complaint was made by Melanie Stark, a former member of staff at Harrods, who claimed she had been forced to wear full make up at work against her wishes.
So what are your rights if you are faced with a new dress code that you wish to challenge? The starting point is that employers are entitled to have a policy on dress. They do, however, have to be consistent in their approach and ensure that any dress code is proportionate to what they are trying to achieve. For example, a policy that hair should be tied back for health and safety reasons is likely to be judged too restrictive if the employee works in a call centre. Non-compliance with your employer’s dress code can be a disciplinary offence if you have no good reason for such refusal.
Uniforms are mandatory in some industry sectors where a unified corporate identity needs to be projected – transport being the obvious example. In other cases, the dress code will be nothing more than “smart”. This does not mean, however, that there has to be an identical dress code for men and women. Indeed, it has been held that a policy requiring men to wear ties does not amount to sex discrimination if women were also required to wear something of a similar smart standard. The test here is “whether the equivalent level of smartness in men can only be achieved by requiring them to wear a collar and tie”.
The difficulty arises where there is a greater difference in the nature and appearance of clothing that men and women are required to wear, which could in turn give rise to a finding that the policy is discriminatory on the grounds of gender.
If there is a dress code that applies to women but not to men, or if the dress code is applied more strictly to one sex than the other, this could amount to direct discrimination. Alternatively, there could be a claim for indirect discrimination. To succeed, a blanket provision relating to dress must negatively impact a specific person or group sharing a “protected characteristic” (sex, age, disability, race, religion) unless its requirements can be objectively justified. In the Virgin case, the protected characteristic is the fact they are female.
And so for Virgin, it is not the fact that the women are being asked to wear a uniform, rather than the male staff (which would amount to direct discrimination), but that the “nature” of the uniform affects the modesty of the female staff only – which could open it up to claims of indirect discrimination.
Whether the offer of vouchers to buy undergarments for use with the new blouses will be acceptable to the female staff as opposed to a “back to the drawing board” approach remains to be seen.
Have you ever complained about a new uniform or dress code? Did you employer take any action?
Philip Landau is an employment lawyer at Landau Zeffertt Weir Solicitors