Catering Scotland

Especially common in catering and hospitality operations, dress codes can apply to both front of house and staff in other departments. However, recent cases show they can clash with people’s rights in the workplace and can lead to successful discrimination claims.

Laura Morrison looks at what employers should do to ensure their workplace is both smart and lawful.

Most hotels and restaurants have a dress code or staff uniforms: Are they lawful?

Yes, as long as they are fair to everyone. Many employers have a dress code of some sort, whether to project a professional image or for health and safety, and that is perfectly legitimate. However, the way such codes are implemented can lead to unlawful discrimination on grounds including religion, disability, sex and gender reassignment. Such discrimination may be direct – for example if uniforms for waitresses are stricter or more demanding than those for waiters – or indirect, such as applying a policy to all employees, which has the effect of preventing the wearing of religious garments.

Are all ‘differences’ discriminatory?

No. Taking sex discrimination as an example, having different requirements for men and women will not necessarily amount to discrimination if, taken as a whole, the policy treats neither gender less favourably. But if the requirements are more onerous on one sex or are not enforced consistently, then this may be discriminatory.

What if dress requirements are for health and safety reasons, or food hygiene standards?

Indirect discrimination, where the same requirement is imposed on everyone, can be objectively justified: for example, preventing a nurse from wearing a crucifix at work has been justified on health and safety grounds. The same may be true of requirements which apply in a kitchen environment.

Is it better to be less strict?

Not necessarily. Some discretion may be exercised when applying a dress code or uniform rules, and a dress code which simply requires staff to dress smartly might allow for differences between male and female staff. However, discretion should be exercised by the employer in an even-handed way. It certainly wouldn’t be appropriate to specify that a female member of staff should wear a skirt, a lower-cut top or more make-up.

What might happen if my dress code is discriminatory?

The most obvious result of a discriminatory dress code is an employee successfully making a discrimination claim. A teenage waitress, who was successful in a sex discrimination claim following her employer’s insistence that she wear a skirt and make-up to make her ‘easy on the eye’ was reportedly awarded over £3,500, in addition to legal fees which may have been higher still.

As well as financial impact, the accusation of discrimination can substantially damage a business’s reputation. Such cases can have significant press appeal and attract considerable social media coverage, which will rarely prove welcome for a customer-focused hospitality business.

How do I avoid discriminating?

Think carefully about what you require from your dress code and be open to reasonable requests for changes. The code should not go beyond what is reasonably required to achieve your objective and you should be flexible in its application, to an extent, in order to avoid disadvantaging employees due to their sex, religion or disability. ACAS and the Equality and Human Rights Commission both provide useful guidance on dress code good practice.

Laura Morrison is an employment lawyer with Maclay Murray & Spens LLP and a member of the firm’s Food and Drink team.

www.mms.co.uk