Schmidt v Austicks

The case of Schmidt v Austicks Bookshops (1977) raises its head once more.

A British Airways worker has accused the airline of sexism after he was sacked for having a ‘man bun’.

Sid Ouared, 26, claims his contract was terminated after bosses demanded he cut his locks because it breached uniform policy.

The former Heathrow customer service worker said one of his bosses even pulled him aside and told him: ‘Your hair is like a girl’s hair.’

One of the problems with legal precedent, which the Schmidt case was, is that it can take a long time to catch up with changing public attitudes. Members of the public – that ubiquitous man on the Clapham Omnibus – might find Mr Ouared’s choice of hairstyle faintly ridiculous, however, they would mostly tend to agree with him that providing he is neat and tidy, it’s none of the employer’s business.

They would be right. However… Schmidt v Austicks Bookshops says different. Indeed, the judgement allows for such discrimination. Providing that any restrictions are placed equally on men and women. Not the same restrictions necessarily, but equally restrictive.

It’s long since reached a point where a court should overturn this ruling as it allows this kind of nonsense to persist.

He claims he suffered discrimination for having a hairstyle deemed appropriate for women but unsuitable for men.

The law as it stands allows employers to insist on traditional appearance, so, yes, that’s precisely what can happen.

BA’s uniform policy says ponytails for men ‘are only permitted to secure dreadlocks’. Women, however, are allowed a number of styles, including a bun, ponytail or single plait.

That’s a bit specific – and odd as the ponytail is a common method used to tidy long hair in the workplace. It’s also somewhat outdated and that man on the Clapham omnibus would think so, too. However, their policy is written and, presumably, shared with new employees before they start work? If not, why not? And we assume Mr Ouared read it and was aware of its contents? And if not, why not? In which case, Mr Ouared doesn’t have a case and if he took it to a tribunal, that’s the matter that he would have to address.

Emma O’Leary, an employment law expert at ELAS, said dress codes must be applied equally to men and women.

I find this interesting as the Schmidt judgement hasn’t been overturned, so this doesn’t make sense on it’s own, so I suspect she is being quoted out of context. Indeed, there have been other cases where different dress codes for men and women have been upheld on the grounds that it was not treating men or women less favourably. I would expect her to be more specific in outlining that dress codes must be equally restrictive on men and women – and applied equally. This doesn’t mean that the dress codes have to be the same.

She said: ‘The company would need to justify why a man could not have long hair and be tied back in the same way that a woman can.’

Again, I’m surprised by this. The ruling does not say this – nor does Burrett v west Birmingham health authority (1993). So I’m not sure where she is getting that from. The justification from the ruling is that the employer may insist upon traditional appearance for men and women and so long as it is applied equally, there are no grounds for a case.

That said, times move on. So does the man on the Clapham omnibus. I can’t say I’m impressed with Mr Ouared’s bun, but as it has no effect on his ability to do his work, the dress code is unduly restrictive. Time to update it. Indeed, it is time employers updated their attitudes to reflect current societal attitudes. Otherwise, this will keep happening.