Last week ACAS published guidance for employers on dress codes.
There are a number of reasons for having a dress code. Sometimes it’s necessary, for example where workers are operating machinery in a factory or working with patients in a healthcare setting. Some businesses choose to introduce a dress code in order to communicate a corporate image and to ensure that customers can easily identify them. However, the ACAS guidance is a reminder that issues can arise when dress codes are in place. The guidance focuses on two areas:-
- tattoos and body piercings; and
- religious dress.
Religious dress in the workplace was the subject of three high profile discrimination cases which were appealed up to the European Court of Human Rights. We looked at those decisions, and the implications for employers, in this bulletin last year.
The notable difference when it comes to tattoos and body piercings is that employees are unlikely to be protected under the discrimination provisions of the Equality Act 2010 (unless an employee could show, for example, that having a tattoo was a central part of their religious or philosophical belief). In fact, the Equality Act specifically excludes tattoos and body piercings from falling within the definition of disability.
Tattoos and body piercings
It’s quite common for employers to ask workers to remove piercings or cover tattoos while at work, especially in public-facing roles. Although it’s unlikely to be covered by discrimination law, an employer’s attitude towards tattoos and piercings could be relevant to the question of fairness – most commonly where an employee has been dismissed.
Employers who want to enforce a policy on dress and appearance should have a clear written policy, which is communicated to all staff and is applied consistently. That means that if an employee has previously been dismissed for having multiple facial piercings, the employer needs to be prepared to do the same if their best performing member of staff goes and gets a visible tattoo.
The BBC news magazine recently ran an interesting piece which highlighted how the increasing number of people who have tattoos contrasts with the ongoing reluctance of employers to recruit or retain employees who have tattoos. The growing popularity of tattoos and body piercings is certainly something that employers need to bear in mind when designing or revising a dress code policy, particularly if the intention is to take a hard line ‘zero tolerance’ approach.
Dress codes and discrimination
The ACAS guidance acknowledges that an employer may well have a different dress code for men and women – such as “men to wear ties, women to dress professionally”. As long as the dress code isn’t more stringent for one sex than it is for the other, however, such differences are unlikely to amount to sex discrimination.
The guidance also reminds employers that adjustments may have to be made where employees are considered disabled under the Equality Act 2010. Again, however, it’s important to remember that employers are only under a duty to consider making reasonable adjustments if a policy or practice (such as a dress code) puts the disabled employee at a substantial disadvantage in comparison with those who are not disabled.
If this is the case, then the employer needs to take such steps as it is reasonable to take to avoid the disadvantage. Decisions on what reasonable adjustments can be made almost always need to be considered on a case by case basis and in consultation with the individual concerned.
On September 10, 2014