There is a wonderful on-line debate amongst Personnel managers about “would you interview someone who turns up wearing jean?” I am tempted to say some are getting there nickers in a twist, but that would detract from the real value of the debate.
Some commentators are appalled interviewees would think of turning up wearing jeans whilst others are appalled anyone should question it! Interesting, many overlook the basic legal requirements on this subject
Despite a combining of the laws on discrimination, the case law authority of Schmidt v Austicks (allowing policies to require a woman to wear a skirt) remains the main marker for the standard.
“…..if one considers the situation of the men and the situation of the women there was no comparable restriction which could be applied to the men, equivalent to that applied to the women preventing them from wearing trousers, which could make it possible to lead to the conclusion that the women were being treated less favourably than the men.”
In other words, men and women may be required to wear different clothing,
In a following case, Smith v. Safeway Plc  ICR 868, the hearing recognised and clarifies that difference:
“… so they [employees] were subjected to restrictions, too, …… the restrictions to which the women were subjected were not appropriate to the men.
So here we have the Tribunal stating clearly that difference is allowed where it is appropriate provided that “the employers treated both female and male staff alike in that both sexes were restricted in their choice of clothing for wear whilst at work and were both informed that a certain garment should not be worn during working hours.”
In the more recent case (2003) of Thompson v Department for Work & Pensions EAT 2003the original tribunal found that the requirement that men should wear a collar and tie at work was unlawful sex discrimination. The case proceeded to appeal and the Employment Appeal Tribunal (EAT) clarify the relevant law.
The original tribunal analysed the dress code as follows:
(i) It was mandatory for men to wear a collar and tie.
(ii) Women had to dress appropriately “to a similar standard” (which we have understood to mean to a level of smartness equivalent to a collar and tie for men).
(iii) There were a few specific items of clothing which neither men nor women could wear, but the list of those items was not exhaustive.
(iv) Although the dress code did not amount to a uniform, the overarching requirement was for members of staff to dress in a professional and business-like way.
(v) That staff were not being required to adopt the standard of dress appropriate to that of a bank or building society. It found instead that management expected staff to “dress smartly”. The Employment Tribunal also found that as a result of the code, women continued to dress more or less as before, but men had to start wearing a collar and tie.
The essential point made by the EAT was that in considering whether a requirement of an employer’s dress code imposed on men but not on women (e.g. to wear a collar and tie) is sex discriminatory the question must be considered in the overall context of the code as a whole, such as an overarching requirement for staff to dress in a professional and businesslike way.
In the light of the EAT ruling, the Department for Work & Pensions (DWP) took the prudent decision to withdraw from the case and subsequently allows men to work without ties provided they were not in direct contact with the public.
The other 2003 examples include a ruling by the Exeter employment tribunal in March 2003 that it was not unlawful sex discrimination for the prison service to require an employee to wear a tie at work. (reference can also be made to the Ian Jarman V Annavoca case-similar professional standards.)
So, what of jeans?
- Does the company require men not to wear jeans (or does it proscribe a dress code) and how was this communicated?
- If there is a list of specific items of clothing which neither men nor women could wear, but the list of those items was not exhaustive.
- Is the standard for women to dress appropriately a similar standard” (which we have understood to mean to a level of smartness equivalent to a collar and tie for men).
- Does the dress code act, as an “overarching requirement was for members of staff to dress in a professional and business-like way.”
- Is the dress code appropriate to that of the business unit ,
Great, that is the law clarified, but now let us apply some common sense, best provided in an anecdote provided buy one of the contributors who reports;
“A very senior and reputable solicitor once told me a story about how he had turned up to a job interview in motorcycle leathers, due a series of mishaps. He didn’t get that job, but went on to be a hugely successful and well-reputed lawyer. The first firm lost out.”
OH, remember this guy: