Two real cases of dress code discrimination and how they won their cases
Becky was harshly criticised because the effects of her pregnancy meant that she couldn’t wear makeup or uniform. Ishpreet was turned down for a job because he couldn’t shave his beard for religious reasons. Both were successful in their Employment Tribunal claims about dress code/appearance in the workplace.
If the way employers apply a dress code ends up unfairly disadvantaging someone because of a protected characteristic, this can count as discrimination.
We look at a couple of discrimination cases to do with dress code.
Example 1: pregnancy and dress code
Becky was a front of house manager at a clinic which provided skin treatments and other aesthetic medical procedures. She worked there from 2015 until March 2020, when she resigned.
What the dress code said
The company’s staff handbook had a “Standards of Dress” section, which stated that front of house managers should wear the dress uniform provided. It also had a requirement for “make up worn daily - neatly”.
Why Becky had to break the dress code
Becky suffered from hay fever, and pollen stuck to her makeup, exacerbating her symptoms. She normally dealt with this by taking prescription medication.
However, in May 2018, she became pregnant and so could not take the medication, which meant that she couldn’t wear makeup without suffering very badly.
The dress uniform also stopped fitting her, and she was not given a maternity uniform. At first, she adapted by wearing her old uniform, from when she had been a receptionist, which was a tunic. When that did not fit, she wore clothing which was the same colour as the uniform. After a number of conversations with her boss, Becky was supplied with a second hand uniform, which did not fit. She eventually bought maternity trousers and tops, which the company reimbursed her for.
“Scruffy and tired”
Becky’s boss then told her that one of the directors of the company was critical of her appearance, and had asked her to speak with Becky about it. She also told her that she looked “scruffy”, and kept making nit-picking remarks. She said Becky looked tired all the time because she was not wearing makeup. Her clothing was criticised, despite her having explained that she had not been given a uniform which fitted.
Her boss did not appear at the Tribunal to give any reason to doubt that Becky’s allegations were true. One of the company directors went instead, saying that the boss had told him she had been surprised that there was an issue and that Becky had “answered back”.
Becky put in a number of claims to the Employment Tribunal, dealing with the treatment around her appearance, as well as some other issues.
She claimed direct pregnancy discrimination under section 18 of the Equality Act 2010, and was successful in her argument that the criticism of her appearance during her pregnancy was discriminatory.
Direct pregnancy discrimination under section 18 of the Equality Act is a specific type of direct discrimination for pregnancy and maternity cases. It says that an employer discriminates against you if, during the “protected period”, it treats you unfavourably because of:
- a pregnancy related illness.
The “protected period” begins at the start of your pregnancy.
- If you have the right to maternity leave, it ends at the end of your maternity leave or (if earlier) on return to work after the pregnancy.
- If you do not have that right, for example if you are not an employee, it ends two weeks after the end of your pregnancy.
When the protected period has ended, you still can’t be discriminated against for having taken maternity leave or having tried to take maternity leave.
Becky’s claim succeeded because the Employment Tribunal decided that the remarks made by her boss were because of her pregnancy and its physical effects. The Tribunal said that the remarks clearly amounted to unfavourable treatment; Becky was being criticised for matters that were not her fault.
Ultimately, she was found to have been constructively dismissed, discriminated against, and to have had some of her wages deducted.
What you can learn from this
Becky was criticised for her appearance at work, despite her best efforts to wear appropriate clothing during her pregnancy. Her employer showed no flexibility and made no sincere efforts to help her.
If you’ve experienced criticism or unfavourable treatment because of your appearance at work, try approaching your employer to see what you can do to resolve the issue. If that fails, you can raise a grievance to progress this more formally, and might ultimately be able to make a claim for discrimination in the Employment Tribunal.
Example 2: religion and dress code
Ishpreet was a Sikh from New Zealand, who had travelled widely looking for work, mainly in the hospitality industry.
In November 2017, Ishpreet applied for work with a specialist agency in the UK providing temporary staff for the hospitality industry, mostly for 5 star hotels working within front of house food and beverage roles.
What the dress code said
The company had a dress code that said “The impression we create by our personal appearance and what we wear is a powerful visual language which communicates more about us in one glance than can be said in a thousand words.” It went on to state rules to which there were no exceptions.
One of these was that “No beards or goatees are allowed”.
Why Ishpreet had to break the dress code
Ishpreet explained to the company’s recruitment manager that he would not be able to shave his beard for religious reasons. This was because as a Sikh, he adheres strictly to Kesh, which is the requirement not to cut hair.
The recruitment manager came back to Ishpreet to say that 5 star hotel managers wouldn’t allow facial hair for health and safety/hygiene reasons - and that hotels at lower star ratings wouldn’t have as much of an issue with this.
Ultimately, Ishpreet was not taken on by the company. He claimed in the Employment Tribunal that this amounted to indirect discrimination on the basis of his religion.
Section 19 of the Equality Act 2010 refers to employers’ “provisions, criteria or practices” that can be examined to see if they are discriminatory. These are known as PCPs, and the definition of a PCP is deliberately broad. It covers any kind of rule, formal or informal policy, practice, or decision, written or implied.
The Employment Tribunal decided that:
- The company’s Dress Code Policy, specifically the “no beards” requirement, counted as a PCP.
- That PCP had been applied equally to all agency workers.
- Sikhs generally, and Ishpreet specifically, were put at a particular disadvantage by the PCP, because it is a fundamental tenet of the Sikh faith to have an uncut beard. A significantly greater proportion of Sikhs than non-Sikhs will be unable to comply with the PCP.
In indirect discrimination cases, it is possible for the discrimination to be justified as a proportionate means of achieving a legitimate aim. The company tried to justify their approach using the following arguments.
The company argued that the PCP was justified by the need to maintain hygiene standards. The Employment Tribunal said that, in principle, maintenance of appropriate hygiene is a legitimate aim. However, they considered that the employer’s policy was explicitly addressed to personal appearance rather than hygiene. It was clear that the “no beards” policy was an appearance issue, not a hygiene issue.
The company also argued that the PCP was justified by appearance requirements. The Employment Tribunal again accepted that it is in principle a legitimate aim that staff working in the hospitality industry, in particular in 5 star hotels, should have high standards of personal appearance. However, they considered the PCP was disproportionate. There were less intrusive means of maintaining high standards of appearance. For example, the company could have simply required Sikhs such as Ishpreet to maintain their beard in a tidy fashion.
Servicing clients’ requirements
The company provided evidence that their clients (the 5 star hotels that they provided staff to) were very strict about dress and appearance codes. The Tribunal accepted in general terms that it is a legitimate aim for the company to seek to comply with client requirements.
However, the company didn’t show that they had asked any client specifically whether they would make an exception for a Sikh. As such, the Employment Tribunal considered that having a “no beards” policy without exception was not itself rationally connected to client requirements. There was no evidence of what client requirements would be when faced with a Sikh worker.
Ishpreet’s claim for indirect discrimination on the basis of his Sikh religion was successful and he won a total of £7,102.17. This included sums for loss of earnings and injury to feelings.
What you can learn from this
Ishpreet succeeded in his religious discrimination claim even though he had never been employed by the company.
It is worth knowing that you can make claims to the Employment Tribunal if you have been discriminated against, even if the employer has turned down your application.
How to progress your dress code discrimination claim
When employers apply dress codes strictly, this can be hurtful to staff who are unable to comply, and can even cost them job opportunities. In the worst cases, this kind of treatment can amount to discrimination.
It’s important to understand all the types of discrimination before making an Employment Tribunal claim. Becky’s case dealt with direct discrimination, while Ishpreet won on indirect discrimination, although the Tribunal noted it could perhaps have counted as direct discrimination instead. Understand the difference between types of discrimination and which best fits the facts of your case.
If you think you may have a case for dress code discrimination, our platform can help you understand the law, gather your evidence, and start a claim in the Employment Tribunal. Sign up for your free account.