British Airways and Virgin Atlantic have both recently announced changes to their dress code rules in relation to uniforms and make-up for cabin crew members, highlights Yvonne Gallagher.
British Airways announced that male members of staff would be permitted to wear make-up subject to the same rules as their female members (make-up to be discreet, nail polish allowed in subtle shades, and “man buns” permitted).
Virgin Atlantic had already introduced a choice of uniform on a gender-neutral basis such that male cabin crew could wear skirts and female cabin crew trousers from the approved uniform options.
This guidance clearly reflects a shift in what might be regarded as more traditional social norms in dress, both generally and in the workplace, reflecting an understanding of different views as to appropriate presentation in relation to both sex and gender.
Can employers still seek to enforce dress codes which draw distinctions between male and female employees?
It is some years since this issue came before the courts. The leading case dates back to 1996, when Safeway Supermarkets was challenged for a requirement that male employees could not have hair below shirt collar length, whereas female employees were allowed to have long hair, provided it was tied back or concealed beneath a cap when working directly in food handling.
The Court of Appeal considered whether the case amounted to direct or indirect discrimination. While it may have initially appeared to be direct discrimination since the individual was subjected to a different rule solely because of his sex, the court held that there was no substantial difference in treatment because both sexes were required to comply with dress codes which reflected social norms, and the fact that those social norms may differ was not detrimental to Mr Smith.
In legal terms, it is not possible for employers to justify direct discrimination on grounds of sex or race (religion and other protected beliefs are treated differently). Indirect discrimination, however, can be justified if a requirement imposed is judged to be a proportionate means of achieving a legitimate aim.
Indirect discrimination arises where the same rule is applied to all employees, but will have a disproportionate impact on those holding one of the legally protected characteristics. Where that occurs, an employer may be able to justify the difference in treatment by reference to, for example, brand requirements for consistency in staff dress, health and safety, food hygiene rules, or other factors specific to the role or business in question.
The key issue for employers now will be identifying what currently defines a social norm or convention in relation to dress. Social norms inevitably change, and it seems likely that the case concerning males with longer hair would be judged differently, should it be heard afresh. For employers, however, the practical difficulty is knowing where lines might be drawn and what rules they can confidently impose.
Can different rules be applied to different groups?
Similar issues will arise in relation to dress reflecting religious beliefs, and employers have typically endeavoured to accommodate these needs, with health and safety issues commonly being the relevant limiting factor.
The issue is likely also to become apparent in relation to expressions of gender identity, where employees may wish not to be bound by sex-based dress codes at all. The move by British Airways and Virgin Atlantic clearly reflects a shift on this basis.
It is important to note that gender identity is not currently one of the protected characteristics under the Equality Act, and challenges to sex-based dress codes are likely to be framed as sex discrimination.
Protections for those who have undergone, or are planning to undergo, gender reassignment will not necessarily apply to those wishing to assert a non-binary identity or who otherwise wish to avoid categorisation by reference to sex or gender stereotypes.
As a matter of general principle, an employer’s ability to impose a dress code which reflects social norms is one that will most likely remain, as seen in the decision in Smith v Safeway which continues to represent the current law. The key point for employers, however, is what this means in practice and to what extent employers are required to take account of shifts in those norms.
As with any issue involving the assertion of protected characteristics and potential differences in treatment, employers must consider first whether their requirements actually amount to direct or indirect discrimination. In Smith v Safeway, the court found that the differing requirements did not cause a detriment to the male employee.
That may not, however, be an outcome on which employers faced with challenges to dress codes could confidently rely. The individual in that case clearly perceived the hairstyle requirement to be detrimental to him, and it may be that this perception of detriment would carry greater weight in any challenge brought forth today.
Employers should therefore be ready to justify any rule they wish to impose. This requires thinking about why the requirement exists, how the business is served by the requirement and what disadvantages might arise were the requirement to be relaxed.
Can employers rely on the views of customers and clients in relation to dress codes?
Employers can take account of client and customer views in relation to dress code but must exercise caution when considering them. It is important to be alive to the possibility that some views may reflect positions which would be open to challenge in relation to protected characteristics. A wish to present a consistent brand image, or as in the Safeway case, clear adherence to health and safety or hygiene requirements can be taken into account, but the link between the desired message and the requirements to be imposed should be reviewed to ensure that it will withstand scrutiny.
Employers continue to find themselves in an environment where a number of norms have changed or are under pressure. Adherence to more general requirements for “smart business attire” has undoubtedly changed as many workplaces operate hybrid models allowing for mixed home and remote working. Issues of appropriate clothing for work video calls made from home already arise, regardless of issues of protected characteristics, and these challenges are likely to persist. Employers will undoubtedly wish to “choose their battles” carefully, particularly in sectors where the recruitment market favours employees.
In practical terms, the answer must be for employers to hear the views of staff wishing to challenge dress codes, to consider why as an employer they enforce the particular aspects of the dress code which are causing concern, and ultimately, to come to a reasoned decision allowing challenges to be dealt with consistently. This approach will not always allow for individuals to follow their own choices. It is noteworthy for example, that British Airways and Virgin Atlantic do still impose requirements for discreet make-up and neutral nail varnish. There will not always be clear-cut or absolute answers, particularly in a world where individual identity and self-expression are afforded at a higher value than may have been the case in the past.
Employers will, however, understandably wish to avoid being a test case for identifying the limits on shifts in social norms. The practical solution must be to recognise that social norms do change, and that it is right to keep dress requirements under review.
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Yvonne Gallagher is a partner at law firm Harbottle & Lewis.
Yvonne Gallagher is partner in the employment team at law firm Harbottle & Lewis. She advises clients on a full range of contentious and non-contentious employment law matters. Her diverse practice includes advising on senior executive level recruitment, complex team moves and matters relating to transfer of undertakings (TUPE). She has developed a particular specialism working with employers to resolve complex board disputes.
Yvonne works with clients from a wide range of industry sectors including financial services, technology, media and support services. For many years Yvonne has also advised The Big Issue magazine on a pro bono basis.
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