19th July 2011 12:25
A recent case causing a stir in the national press involves an employee of Harrods’ department store and the issue as to whether an employer is permitted to impose on their female staff a condition that they wear full make-up at all times. The worker in question resigned after being told that she must wear full make-up against her will. The question: is this sex discrimination?
Rachel Birtles, Paralegal, Litigation department refers to a case concerning sex discrimination and dress code notably Smith v Safeway, heard by the Court of Appeal in 1996. It was held that it was not unlawful sex discrimination to dismiss a male employee whose ponytail was too long by the standard of the employer’s dress and appearance policy. In Smith, the Tribunal followed the case of Schmidt v Austicks Bookshops as authority that in matters of appearance, the law permits different rules to be applied to men and women and for employers to be able to lay down reasonable requirements as to the way employees present themselves at work if they come into contact with the public.
The more recent case of SG v St Gregory’s Catholic Science College, decided this year followed Smith by stating that a common principle of smartness in the workplace would not be discriminatory. Here, the school had imposed a conventional standard of appearance for both men and women and it was held that this did not treat either sex less favourably.
Although the cases above were decided under the previous anti-discrimination legislation (the Sex Discrimination Act 1975), the Equality Act 2010 which came into force in October 2010, may not bring about much change.
Direct discrimination is defined by the Act as where “A discriminates against B if, because of a protected characteristic [such as sex], A treats B less favourably than A treats or would treat others”.
Indirect discrimination is defined by the Act where “A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic”. The provision, criterion or practice in this instance, being the restriction in dress code.
Rachel concludes that although on the face of it, requiring all women to be heavily made-up seems deeply discriminatory, looking at the decisions of previous case law, it is possible that Harrods, by imposing a strict and particular standard of dress on both sexes is treating neither sex less favourably and there can be no direct sex discrimination. Further, as held in Schmidt, Smith and SG applying, as a whole, a conventional standard of appearance for both men and women, and both sexes being comparably restricted, is unlikely to amount to indirect sex discrimination. In the future, and as case law develops the position may change, but at present it looks like Harrods’ staff appearance policy is not unlawful.
For further information and advice, contact Ian Pettifer on 01452 509080 or email ian.pettifer@tayntons.co.uk
Rachel Weldrake, Family Law Solicitor, Tayntons LLP, Gloucester reports on the alleged Service Personnel & Veterans Agency mistake - Armed Forces Pension Schemes are complex and have always presented something of a challenge for divorce lawyers. The main issue arises around the date that serving members can take their pension... read more
See this section to learn more about the solicitor dealing with your case or use the search tool to locate a particular individual within the firm, including members of Tayntons LLP’s management team. For general queries, please call our reception team on 0800 158 4147 who will be happy to help.
Team warns again bogus approaches - Our Wills, Trusts & Probate team recently dealt with an Enduring Powers of Attorney case where an elderly client had been befriended by a man half her age. He had claimed to be homeless and... read more