Dress Codes and Employment

Via the Men’s Long hair Hyperboard, this story:

A Nottingham man who was turned down for a job because he refused to cut his pony tail off has lost his claim for sexual discrimination.

As I pointed out in the discussion, the ruling was the correct one in law:

Under current English law, the tribunal returned the correct verdict. There is no protection for long haired males in English law. When making judgements under the sex discrimination act a “swings and roundabouts” approach is used (first applied in Schmidt v Austicks Bookshops in 1977). The employer had a dress code that requires a conventional appearance for both genders – therefore, the complainant had no case in law. I’m surprised that he was advised to take the case forward – a half decent solicitor would have told him that he had no grounds for complaint in law.

While it’s an old case, Schmidt is still used because nothing has effectively over-ruled it. Even though the Owen v Professional Golfers Association judgement now means that women cannot be prevented from wearing trousers (which was the crux of Schmidt), the “swings and roundabouts” principle is still valid and is still applied – as it was here.

The tribunal ruled on Wednesday that the company had a right to set a different dress code for both sexes.

Correspondents then mentioned the dreaded Human Rights Act – this, from Luke, the original poster:

dress codes are just a way of the bosses trying to tighten their grip on their employees. the right to freedom of expression has been infringed by the company in question, and by companies in general. (tempted to swear more than usual in ranting about capitalism)…

And this from elektros:

What about the Self Expression clause of the European Human Rights Act? That wasn’t even enacted at the time of the precedent you quote.

Ignoring for a moment the stuff about capitalism and bosses, I don’t think that a complaint under human rights legislation is likely to succeed in this case. The employment tribunal would have considered such legislation when reaching a judgement. Without a precedent though, they would be left looking at the facts of this case and would have made a decision about whether it applied. Was Mr Emerson’s right to expression infringed? Well, did anyone force him to cut his hair? Going by the picture on the BBC website, no, they didn’t. An employment contract is just that; a contract between two parties. Mr Emerson was made an offer under the terms of the contract and chose not to accept – therein lies the rub for any claim against restrictions of freedom of expression; he freely chose not to sign and therefore not to cut his hair. Had he chosen to sign, he would have been accepting the terms and conditions of his own free will. As a voluntary participant to the contract, no infringement of his freedom to express himself would have applied, I suspect. I may be wrong of course. We will have to await the outcome of a test case to be sure, but I doubt Mr Emerson’s will be the one to succeed as it is inherently weak.

Was the contract clause fair and reasonable? Under current English law, yes. Was it sensible? Well, given that Mr Emerson appears to have been a potential asset to the company and the negative publicity of the resultant court case may damage the company’s standing and business, I would suggest that it was unnecessarily restrictive; foolish even.

Having said that, I stand by my comments on the board regarding dress codes. They are not just bosses tightening their grip on a hapless workforce; they are pragmatic common sense and provide protection for all parties:

A sensible employer will always have a written dress policy, just as they will have written policies on things such as bullying, harassment and equal opportunities. That way, if an individual manager decides to impose their own standards (as happened to me) the employee has something with which to hold them to account. If the employer does not have a policy, then they are vulnerable in such cases.

As a self-employed person, I would expect, should I ever employ another, to have a degree of control over the manner in which they present themselves when representing my business. Employers have rights too and a free-for-all on dress can, in the wrong circumstances, damage a business’ reputation and therefore trade. And who would be the first to complain when faced with the resultant redundancies? Ah, now, ain’t that the rub?