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“We have a Company dress code whereby male employees are required to wear shirts and a tie and female employees are required to wear branded tops and a blazer. We have had a female employee ask if she can wear the male dress code, i.e. a shirt, and we are not sure how to respond to this. We would like to say no because we would prefer a uniform approach with all female members of staff wearing the same dress code/uniform. Is this possible?”
It is wise to enquire on such a situation because one would expect there could be an element of discrimination by not allowing the female employee to wear the male employees’ uniform/dress code. However, the present legal position is that whilst rules in relation to uniforms and dress codes will apply differently to men and women, if their overall effect will be broadly the same, which is to ensure conventionality in appearance, it should not be unlawful or discriminatory to refuse. You would be arguing, therefore, that your dress code does not treat one sex less favourably than another since both sexes are required to dress in a conventional way.
This derives from the Employment Appeal Tribunal case of Department for Work & Pensions v Thompson where the EAT upheld a decision that the proper approach was not to compare which particular garments men and women are required to, or prohibited from, wearing but rather to look at the overall effect of the rules in force. This follows from the principle that a dress code which applies conventional standards is one which, so far as the criterion of appearance is concerned, applies an even-handed approach between men and women and not one which is discriminatory.
In any event if ever such situations arise it is always safer to take legal advice in the first instance as each case/situation is usually decided on its own merits.
Kirsty Swan, Partner, Motor Industry Legal Services