GENDER DISCRIMINATION & DRESS CODES

advo’s HR Manager, Alison Gill outlines the issue of dress codes and in particular ensuring they are gender neutral. How can businesses ensure employees are representing the company in a positive way whilst addressing the individuality of how people dress?

Pre-COVID, it appears that for those working in an office environment, there was a written or unwritten role regarding smarter standards of dress. However, since working from home, employees may have got used to a more casual style of dress and this change has translated into the office working environment.

This cultural shift has led to a number of queries that has left employers pondering what dressing appropriately for work means. At advo, we frequently get asked questions about dress code and the appearance of employees at work. If an employee attends work and the perception is that they are scruffy, poorly groomed or dressed ‘inappropriately’, this can lead to a difficult conversation. An employee’s appearance can be subjective and addressing such subject can be awkward for managers.

Dress code can be a written or unwritten code of practice that companies adopt as a type of workplace etiquette. The strict adherence to dress code rules often varies from company to company and there are advantages and disadvantages to setting these rules.

For example, dress codes clarify the expectations of the employer and helps the employee to adhere to the company dress culture, promoting professionalism, team spirit and uniformity. Think about McDonalds and apple, its easy to see there is clearly a dress code within these organisations.

Some companies may want employees to retain their office dress code whilst working from home – where they either deal with clients who are used to a certain type of decorum, or have internal virtual meetings where making a good impression is key. However, a well-reported incident from 2015 comes to mind as a major disadvantage to some company dress code requirements.

The incident involved a temporary receptionist who was sent home without pay from PWC after she refused to wear two-tofour-inch high heeled shoes and complained that such requests were not being made of her male colleagues. She argued that she would not have been able to work a ninehour shift in heels and the result was the publication of specific Government guidance, released in May 2018, which sets out the rules for dress codes.

This guidance explains that whilst dress code policies for men and women can differ, an equivalent level of smartness for workers of all sexes must be imposed. However, despite this guidance that was introduced some five years ago, recent reports have shown that 34% of women workers have been told to wear more make-up on virtual calls.

This comment would clearly not be made to men so this would immediately be an incident of direct sex discrimination.

If you are thinking about revisiting a dress code for your team, it is advisable to avoid gender specific prescriptive requirements, e.g. the requirement to wear make-up, have manicured nails, wear hair in certain styles or to wear specific types of hosiery or skirts is likely to be unlawful, assuming there is no equivalent requirement for men.

A dress code that requires all employees to ‘dress smartly’ would be lawful, provided the definition of ‘smart’ is reasonable. For example, a two-piece suit in a similar colour for both men and women, with low-heeled shoes for both sexes.

There is also the need to think of other protected characteristics when you make a dress code, e.g. religion and belief etc. It would be extremely difficult to stop any employee from wearing religious clothing, certain headpieces or wearing an article that lets them express their faith.

A lot of businesses adopt a loose ‘casual’ dress code policy or say that everyone should dress appropriately. They may adopt a clause that states that they trust employees to make the right decision about what they wear, ensuring that they are comfortable but also that they represent the company in the right way at the right time.

If you are considering adopting this type of approach, it may be helpful to provide employees with some broad guidance. This would then avoid subjective decisions and managers having to have difficult conversations about the term appropriateness.

If you are thinking about setting or revising a dress code, please consider the reasoning behind your dress code and avoiding any discriminatory elements. advo would recommend consulting with employees as this may help ownership and to ensure that through agreement, any dress code is acceptable to both the company and its employees.

Please reach out if you require any assistance, our experienced HR team are to here to help.

This related to a recent case when a manager and an employee were discussing a deal when he dropped the ‘F-bomb’.

This is not the first case that highlights swearing! Back in 2003, an employee took legal action against his employer, claiming that the conduct of the CEO, in particular his abusive and foul language, constituted a breach to the implied duty of trust and confidence.

As with some Employment Tribunal cases and newspaper reports, there is more to these cases than headlined but this is an area that opens up discussions about language at work can be a minefield.

If someone stubs their toe on the edge of their desk or drops hot coffee down them, you may hear the odd profanity and most people will just shrug it off and in some working environments, swearing may be commonplace and culturally accepted as part of everyday communication between colleagues. However, in other workplaces, swearing may be considered unprofessional, offensive and grounds for disciplinary action.

There is no law that swearing in the workplace is an act of gross misconduct but whatever the culture, advo would recommend that employers should always be conscious that not everyone likes or feels comfortable in an environment when swearing is common place.

We would recommend that employers take the lead and set out a clear policy on the use of offensive and inappropriate language in the workplace. It is always good to provide examples of what would be considered unacceptable and to be effective, the stance has to be managed consistently and managers should immediately address issues relating to swearing and offensive language.

It is also really important that managers lead by example and don’t use foul language themselves and if they are frustrated by an employee’s performance, they should be encouraged to take time to calm down before speaking with the employee. Being subject to offensive language may lead to grievances against the manager, and if the language used is so offensive and serious as to result in an employee resigning from their job, they may be able to bring a claim to an Employment Tribunal for constructive dismissal.

If an employee directs abusive or offensive language towards a manager, or any employee, facts of the incident should always be considered before any decision is made to take disciplinary action. In one tribunal case, where an employee used abusive language towards a colleague in a sudden explosion of temper and under the influence of drink, it was held to be unfair to dismiss that employee without first giving him the opportunity to apologise.

Please remember that even if an organisation opts to take a more relaxed approach to swearing at work, employers must be aware of their duty to take steps to prevent bullying, harassment, discrimination and victimisation in the workplace.

The law protects workers from discrimination, harassment, bullying and victimisation relating to protected characteristics, including age, sex, race and maternity. If someone is subject to profanities or foul language because of a protected characteristic, which they feel is inappropriate, derogatory or offensive, this may be considered unlawful discrimination, even where the person swearing claims it to be ‘banter’.

Employers can be held legally responsible for the actions of its workforce during the course of employment. However, an employer may not be held responsible if an Employment Tribunal decides they took all reasonable steps to try to prevent harassment, discrimination, and victimisation by members of staff.

This means it is in the employer’s interest to ensure workers are aware of and trained on the organisation’s policy and standards of conduct, that any complaints are acted on quickly to reduce the risk of any costly claims.