Claire Pas­call

Stu­dent, Hugh Wood­ing Law School

A pro­fes­sion­al dress code or ap­pear­ance is not specif­i­cal­ly de­fined. How­ev­er, it gen­er­al­ly means the rec­om­mend­ed ap­pear­ance with­in a par­tic­u­lar work en­vi­ron­ment. The im­por­tance and ra­tio­nale for im­ple­men­ta­tion of a dress code in the work­place varies by in­dus­try based on the na­ture of the in­dus­try and is sub­ject to in­ter­pre­ta­tion of each in­dus­try.

For ex­am­ple, pro­fes­sion­al­ism for an em­ploy­er in a bank may re­quire an em­ploy­ee to wear busi­ness at­tire all year for the po­si­tion of teller, which re­quires con­stant in­ter­ac­tion with clients. On the oth­er hand, pro­fes­sion­al­ism for an em­ploy­ee who is a graph­ic artist in an ad­ver­tis­ing agency may call for more ca­su­al wear such as jeans and a ca­su­al shirt.

Le­gal po­si­tion­in the-work­place

Dress codes are guid­ed by poli­cies, prac­tices and norms in var­i­ous work­places, which es­tab­lish the rea­son an em­ploy­er may have one. Three main rea­sons in­clude:

1. To be eas­i­ly iden­ti­fi­able. For ex­am­ple, an air­line may re­quire staff to wear uni­forms, fea­tur­ing the lo­go of that air­line.

2. To rep­re­sent an im­age to re­flect the ethos of the or­gan­i­sa­tion. This can call for the re­moval of cer­tain body pierc­ings and the cov­er­ing of tat­toos.

3. Health and safe­ty pur­pos­es. For ex­am­ple, fire­fight­ers are re­quired to wear a rigid hel­met, hand gloves, a belt and safe­ty shoes.

An em­ploy­er's pol­i­cy on dress code should be non-dis­crim­i­na­to­ry, that is, it should ap­ply equal­ly to both men and women. The Equal Op­por­tu­ni­ty Act, Chap.22:03, man­dates that a per­son should not be dis­crim­i­nat­ed against on the ba­sis of sex, race, eth­nic­i­ty, re­li­gion, mar­i­tal sta­tus, ori­gin (in­clud­ing ge­o­graph­i­cal ori­gin) or any dis­abil­i­ty of that per­son. Thus, a Rasta­far­i­an who wears "dread­locks" based on their re­li­gion should tech­ni­cal­ly not face dis­crim­i­na­tion.

For a pol­i­cy to be dis­crim­i­na­to­ry, it must be 'less favourable treat­ment' rather than 'dif­fer­ent treat­ment.'

In the UK case of De­part­ment-for-Work-and-Pen­sions-v-Thomp­son-(2004)-IRLR-348, EAT, the de­part­ment re­quired its job-cen­tre staff to dress in a pro­fes­sion­al, busi­ness-like way. This meant that male staff were re­quired to wear a col­lar and tie. The same was not re­quired of women who were mere­ly re­quired to 'dress ap­pro­pri­ate­ly and to a sim­i­lar stan­dard'.

It was held that sim­ply re­strict­ing mem­bers of one sex to a par­tic­u­lar type of cloth­ing while mem­bers of the oth­er sex were not, did not amount to less favourable treat­ment. A com­mon stan­dard had been set for all staff and nei­ther gen­der had been treat­ed less favourably by the en­force­ment of that stan­dard.

It fol­lows that poli­cies may have re­stric­tions, but these re­stric­tions must be clear­ly com­mu­ni­cat­ed and jus­ti­fied to the es­tab­lish­ment of the or­gan­i­sa­tion.

Reme­dies

1. The High Court is not lim­it­ed to em­ploy­ment mat­ters and of­fers an al­ter­na­tive method of re­course to any in­di­vid­ual.

2. Where there is a trade dis­pute be­tween em­ploy­er and em­ploy­ee, a re­port can be made to the Min­is­ter of Labour who then de­ter­mines whether the dis­pute is un­re­solved and re­fer the mat­ter to the In­dus­tri­al Court: sec­tion-59-In­dus­tri­al-Re­la­tions-Act.

3. A per­son who al­leges a dis­crim­i­na­to­ry pol­i­cy can lodge a writ­ten com­plaint with the Equal Op­por­tu­ni­ty Com­mis­sion de­tail­ing the al­leged act: sec­tion-30-Equal-Op­por­tu­ni­ty-Act-Chap 22:03.

Com­pen­sato­ry dam­ages, re­in­state­ment and re-hir­ing may be award­ed if a claim is suc­cess­ful.

Dress codes are cre­at­ed to es­tab­lish guide­lines about what at­tire is ac­cept­able or re­quired with­in a par­tic­u­lar or­gan­i­sa­tion... Ac­cept, Con­form, Dress!

Ed­i­tor's note: This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult an at­tor­ney-at-law.