It is common for employers in the hospitality industry to require staff to wear a uniform or dress in a particular way. It is increasingly important to carefully think through your dress code policy to ensure it does not discriminate (for which compensation is uncapped), or create a risk of harassment. To assist, the Government Equalities Office has published new guidance on dress codes and sex discrimination.
In setting a dress code, take time to consider how it can affect staff. Whilst your policies for men and women do not have to be identical, there should be equivalent standards imposed. Any less favourable treatment because of sex could be direct discrimination. For example, a requirement for women to wear high heels at work could lead to a successful sex discrimination claim, due to the physical damage high heels can cause, resulting in women being treated less favourably than men.
Employers will also be at risk of an indirect discrimination claim if there is a policy in place that applies to everyone in the same way, but has a worse effect on a particular group of people that share a protected characteristic (age, disability, marital status, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation). That is, unless the requirement can be justified. If, for example, you had a policy that back of house staff must not have beards, this could be indirectly discriminatory (on the grounds of religion or belief) against an employee who may be required to grow one as part of his faith. On the other hand, if the requirement is for staff working with food to cover their beards for food hygiene reasons, this would be a proportionate means of achieving the legitimate aim of the policy.
Transgender staff should be allowed to follow the dress code in a way which they feel matches their gender identity. Therefore you should ensure they are supplied with a uniform option that suits them.
In setting a dress code policy, you should also consider the safety of staff and customers as well as mitigating any potential risk of a claim from an employee. Balancing these factors is necessary to commercial success, avoiding the financial and reputational damage that can be caused to the business by a legal claim.
Take the opportunity to have a fresh look at your policy, taking these issues into consideration and reviewing the reasoning behind the policy. What are the businesses reasons and aims for having a policy? Are those aims actually achieved by the policy? If the policy does potentially disadvantage a particular group, can it be legally justified? If you have a different dress code for men and women, ensure the dress code isn’t more stringent for one sex than it is for the other.
If you have any questions around dress codes or other aspects of employment law, please contact Erica.firstname.lastname@example.org.