Walking the catwalk between appropriateness and discrimination

We all know just how important image can be for those who work in the retail and consumer sector. From the look of the menus. to the layout of the room and the staff on a shop floor, each detail counts towards creating the overall brand of each establishment. It even affects the clothes employees wear to work.

Employees’ clothes will largely depend on the general atmosphere and ‘feel’ of the establishment – for example it’s not surprising to see checked-shirt-wearing hipsters working in trendy craft beer pubs, whilst smart clothing brands might expect their staff to reflect the sophistication in their work wear. But where do retailers draw the line between appropriateness and discrimination, and what does the law say on the issue?

In a recent example of what not to do, a London jazz club posted an online job advert looking for ‘extremely attractive’ staff to apply and requested that female applicants ‘must be comfortable wearing heels’. The Equality Act 2010 deems it unlawful for an employer to discriminate against someone because of their gender, so it seems clear that a dress code that places more demands on female employees than their male colleagues will be unlawful. But it’s important to note that this protection extends to the recruitment process.

Insisting on certain dress codes or requiring ‘physical attractiveness’ may leave employers exposed to potential discrimination claims. However, there is a distinct absence of cases where discriminatory dress codes have been challenged, leaving the law unclear.

When it comes to demands concerning appearance, expecting more from a person with a protected characteristic like gender, race, disability and age over another person who doesn’t have that protected characteristic is likely to amount to discrimination.

Although the law around dress code remains unclear, a recent case showed the consequences when companies fail to make reasonable adjustments around an employee’s disability. In a recent case, Abercrombie and Fitch claimed an employee went against their ‘look policy’ after she refused to remove a cardigan which covered her prosthetic arm. The shop then suggested she work in the stock room until the winter uniform came in. Following this Ambercrombie & Fitch was taken to an employment tribunal, and the employee was awarded over £9,000 in compensation from her former employer. This included an award of £7,800 for injury to feelings on the basis that it unlawfully harassed her and failed to make reasonable adjustments to its ‘look policy’, with respect to her disability.

The Government is drafting new guidance for employees around the issue, following campaigner Nicola Thorp’s petition against women being required to wear high heels at work. The petition gathered 152,420 signatures and prompted an inquiry, which heard evidence from a large number of women who recounted being forced to dye their hair, wear revealing uniforms, and constantly reapply makeup. The inquiry concluded that the Equality Act 2010 was not fully effective in protecting workers from discrimination. It is hoped that the new guidance   will provide clarity to employees and employers and help to clear up some of the confusion.

It’s clear here that there is a delicate balance in promoting a strong brand image whilst and discrimination. The consequences can be bad publicity and a loss of custom, as well as huge fines. If in doubt, you can contact Alison for expert advice here.

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