Retales™: Requiring employees to wear make up

Dress codes are back in the news again, after a sales assistant at Harrods recently resigned over her refusal to wear make up. The employee, who was based in the HMV department of Harrods, claims that she had worked without wearing make up for four years before being asked to comply with the store's dress code. According to newspaper reports, Harrods' detailed dress code requires women to wear "full make up at all times" and stipulates what type of make up should be worn. After refusing to comply with this part of the dress code, the employee was apparently sent home twice and asked to work in the stockroom. The employee subsequently resigned, claiming that she was "driven out" of her job over her refusal to wear make up.

This is not the only time that retailers' dress codes have been under the spotlight. Many retailers will recall the high profile Abercrombie & Fitch case. An employee who wore a prosthetic arm claimed that she was instructed to remove her cardigan as it did not comply with the company's "look" policy. The employee was subsequently awarded £9,000 in compensation.

Dress codes are becoming increasingly contentious and potential claims from employees are a cause for concern. However, dress codes are vital in the retail sector, where the appearance of customer-facing employees is often considered a priority. So how should retailers deal with the dress codes? Here are the key issues to consider:

• What is the purpose of the dress code? This should be reflected within the dress code requirements (e.g. is the code intended to encourage a professional appearance; establish a specific corporate image; meet health and safety standards?)
• Who does the dress code apply to? Should different standards of dress apply to different roles (e.g. depending on whether or not they are customer-facing)?
• Does the dress code cater for religious requirements? Retailers may need to consider the potential impact of religious requirements on their dress codes (e.g. dress code restrictions relating to wearing a veil or a cross in the workplace have given rise to litigation recently). Retailers should give careful consideration to the implications of their dress code requirements and whether they are justifiable.
• Could the dress code give rise to sex discrimination? Dress codes often contain different requirements for men and women and, in the past, have been challenged on this basis. Case law has indicated that a code which applies conventional standards of appearance and applies an even handed approach between men and women does not amount to sex discrimination, even if the content is different for men and women.
• Should adjustments be made? As illustrated by the Abercrombie & Fitch case, it is advisable for employers to make adjustments to the content, and enforcement of, dress codes for disabled employees. Being too inflexible is likely to lead to problems and may leave retailers facing discrimination and/or constructive unfair dismissal claims from employees.
• Does the code need to be reviewed? Retailers should ensure their dress codes are regularly reviewed to assess whether changes are required. It is also important to check whether the dress code has been adequately implemented, and enforced, throughout the organisation.

If you would like further advice on dress codes and how to minimise the risk of litigation, please contact Nick Thorpe, Employment Partner.