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Dress codes |
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The rights to privacy, freedom of religion and freedom of expression, now part of UK law under the Human Rights Act 1998, all have potential for employees who do not conform to the norm.
Rules on clothing and appearance need careful examination in regard to sex, race and gender reassignment. Under existing law, dress codes must be equivalent for men and women and take account changing social attitudes.
Where an item of dress is dictated by race or ethnic origin (as opposed to religion), it will be unlawful to refuse to allow it. Where an employee has embarked on a course of action that will lead to gender reassignment surgery, it would be unlawful to prevent them dressing according to their new gender.
When deciding an unfair dismissal claim under the Act, the employment tribunal would consider whether the right to freedom of expression had been violated, and, if so, whether the rule is proportionate and necessary.
Where health and safety is the reason for a rule, employers should have no difficulty in justifying it. A defence could succeed on the basis that an interference with the right to freedom of expression is necessary to protect the reputation of an employer.
Thus, it is unlikely that objections to a trainee solicitor's newly acquired (visible) body-piercing or tattoos would have to be supported by evidence that they were likely to prove offensive to clients and potential clients.
Two other rights could prove significant:
The right to freedom of religion could support claims that would fail under domestic race discrimination law. This gives no protection to those who adopt a particular form of dress for religious reasons. Race discrimination law, for example, excludes followers of Islam unless they are also part of an ethnic group - and does not recognise Rastafarians as a racial group.
A person's private and family life is separate from their working life, where an employee is required to "live in" restrictions on their choice of clothes, hairstyle or appearance could impinge on their private life.
Employers should make themselves aware of the discrimination issues inherent in dress codes, otherwise they could end up paying out unlimited compensation claims. Unfair dismissal claims have more hope of success now if they are based on personal appearance.
See also our information on "dress down" days.
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