Dress codes have hit the headlines in recent months in various cases, each of which has highlighted the difficult question of how far employers can dictate their employees’ appearance at work. Here we aim to answer that question by looking at the employment claims which might arise from dress codes, and suggesting practical tips on how they can be avoided.

Employment claims

• The main claims that might result from dress codes are sex discrimination, and race and religious discrimination.

Sex discrimination

• Employers who set more relaxed rules for the appearance of their female employees than they do for their male staff, or vice versa, may face a sex discrimination claim. The key for employers is to ensure that the rules on what men and women can and cannot wear to work are equivalent, and do not unfairly disadvantage either sex.

More difficult questions arise when it comes to hairstyles. Some employers might be happy for their female staff to wear long hair loose, but would not wish to see male employees do the same, and would prefer them to cut it or tie it back.

Race and religious discrimination

• Some employees have cultural or religious requirements which dictate aspects of their clothing or appearance. A dress code which does not accommodate these will amount to race or religious discrimination, unless it can be justified. However, employers should accommodate cultural or religious requirements, if they can do so without detracting from the aim behind the dress rules.

Ensuring an employee can do his or her job

• It will almost always be justifiable to prevent an employee wearing an item that interferes with his or her ability to do the job effectively. Aishah Azmi’s claim for religious discrimination failed because her job involved teaching English, and the school could show that the veil adversely affected the children’s ability to learn language skills.

Health and safety

• Dress codes are sometimes introduced for health and safety reasons, which will usually justify any disadvantage to employees of a certain race or religion. For example, it would be justifiable to prevent employees who work with machinery from wearing jewellery which could get caught up in it.

Smart appearance

• Employers may be able to justify rules aimed at achieving a smart appearance for employees, but this depends partly on the employee’s role. Employers are more likely to be able to justify this requirement for a customer facing employee.

Many rules that employers stipulate in order to achieve a smart appearance should not cause any disadvantage to employees from particular cultures or religions, for example specifying no jeans, no shorts, no vests or no clothing displaying slogans. As long as rules apply equally to male and female employees, no claims should arise.

Uniform

• It is generally accepted that in service or retail industries, a uniform is frequently necessary. However, employers should still consider whether any deviations can be allowed in order to accommodate cultural or religious requirements, for example, allowing female employees to wear trousers instead of skirts.

Dealing with transgressions

• Employers are entitled to discipline employees who fail to comply with the dress code. The appropriate sanction will depend on the extent to which the employee has breached the rules, and any previous history of doing so.

Dismissal for breaching the dress code will be unfair (attracting compensation of up to around £70,000) unless the employer follows a fair disciplinary procedure, and dismissal is a reasonable course of action in the circumstances. It would almost certainly be unfair to dismiss for a first offence.

Anna West is an employment lawyer at City firm Travers Smith.