Presenting the right corporate image can be important, particularly for retail brands. However, care needs to be taken when formulating guidelines on appropriate clothing and appearance. Employers
Presenting the right corporate image can be important, particularly for retail brands. However, care needs to be taken when formulating guidelines on appropriate clothing and appearance. Employers should keep in mind potential issues of discrimination; in particular in respect of religious or cultural dress.
But can a dress code policy be "fattist" and, if it is "fattist", what recourse might an employee have against their employer?
The recent case of Mrs W Whiterod v Karen Millen Fashions Ltd examined whether the retailer had a policy that staff should be of a certain size, stature and appearance. Mrs Whiterod was employed as a Sales Assistant at Karen Millen, the high end women's retailer. Karen Millen implemented increasingly prescriptive requirements to ensure that staff reflected the brand in their dress, style and presentation. Among other things, the wardrobe guidelines suggested that the image to be presented by staff was a "longer and leaner silhouette".
A number of incidents occurred which, coupled with the dress code, led Mrs Whiterod to believe that staff were required to be of a certain size, stature and appearance. One incident occurred when an individual had dropped a CV off at the store with a Sales Assistant. A Manager subsequently asked whether the individual was slim and pretty. When the Sales Assistant replied that she was average sized and plain, the CV was binned. Another of Mrs Whiterod's colleagues joked that he was kept back of house because he was overweight. A company newsletter from the Regional Manager stated that she hoped staff had not eaten too many Easter eggs as they needed to fit into their dresses as part of a sales promotion. Finally, Mrs Whiterod alleged that derogatory comments were made about a colleague who was size 14 - 16.
Following these incidents, Mrs Whiterod was signed off with stress and raised a grievance regarding the incidents. The grievance manager concluded that there was no official or unofficial policy regarding staff weight or attractiveness, although an apology was made for some of the inappropriate and insensitive comments. Mrs Whiterod appealed the decision and later resigned claiming constructive dismissal.
Mrs Whiterod's claim failed because she was unable to establish a repudiatory breach of contract by her employer. The Tribunal noted that none of the incidents had been directed at Mrs Whiterod, whose own image was considered to be acceptable. The comment regarding being required to work back of house was found to be a joke and it was taken as such by Mrs Whiterod's colleagues. The Easter egg comments were not calculated or likely to damage the mutual duty of trust and confidence. Overall, the Tribunal concluded that there was no policy that employees should be of a certain size or appearance and that Karen Millen had made a genuine and serious attempt to resolve Mrs Whiterod's grievance. The Tribunal also concluded that the dress code did not reflect a policy that staff had to be of a particular size, stature or appearance; rather, it promoted a style of staff dress that reflected the Karen Millen brand.
Mrs Whiterod's constructive dismissal claim was dismissed. But would the outcome have been any different if she had brought a discrimination claim? Probably not. Last year the Employment Appeal Tribunal refused to accept that obesity in itself renders a person disabled. It is highly unlikely, therefore, that any discrimination claim based on her size, or a perceived "fattist" working practice or environment, would have been successful. However, the European Court of Justice is currently considering whether obesity can be a disability under the Equal Treatment Directive in the Danish case of FOA, acting on behalf of Kaltoft v. Billund Kommune, with judgment expected later this year.
This case is a useful reminder of the need for caution when drafting dress codes. Dress codes can evoke strong reactions. Therefore, regard should always be had to potential issues of discrimination and other possible sensitivities, whenever drafting or updating your dress code.
If you are thinking of introducing a dress code policy, or are in the process of updating your existing policy, please do speak to any member of our Employment Team if you would like any advice or assistance with the drafting. We would be very happy to assist.
But can a dress code policy be "fattist" and, if it is "fattist", what recourse might an employee have against their employer?
The recent case of Mrs W Whiterod v Karen Millen Fashions Ltd examined whether the retailer had a policy that staff should be of a certain size, stature and appearance. Mrs Whiterod was employed as a Sales Assistant at Karen Millen, the high end women's retailer. Karen Millen implemented increasingly prescriptive requirements to ensure that staff reflected the brand in their dress, style and presentation. Among other things, the wardrobe guidelines suggested that the image to be presented by staff was a "longer and leaner silhouette".
A number of incidents occurred which, coupled with the dress code, led Mrs Whiterod to believe that staff were required to be of a certain size, stature and appearance. One incident occurred when an individual had dropped a CV off at the store with a Sales Assistant. A Manager subsequently asked whether the individual was slim and pretty. When the Sales Assistant replied that she was average sized and plain, the CV was binned. Another of Mrs Whiterod's colleagues joked that he was kept back of house because he was overweight. A company newsletter from the Regional Manager stated that she hoped staff had not eaten too many Easter eggs as they needed to fit into their dresses as part of a sales promotion. Finally, Mrs Whiterod alleged that derogatory comments were made about a colleague who was size 14 - 16.
Following these incidents, Mrs Whiterod was signed off with stress and raised a grievance regarding the incidents. The grievance manager concluded that there was no official or unofficial policy regarding staff weight or attractiveness, although an apology was made for some of the inappropriate and insensitive comments. Mrs Whiterod appealed the decision and later resigned claiming constructive dismissal.
Mrs Whiterod's claim failed because she was unable to establish a repudiatory breach of contract by her employer. The Tribunal noted that none of the incidents had been directed at Mrs Whiterod, whose own image was considered to be acceptable. The comment regarding being required to work back of house was found to be a joke and it was taken as such by Mrs Whiterod's colleagues. The Easter egg comments were not calculated or likely to damage the mutual duty of trust and confidence. Overall, the Tribunal concluded that there was no policy that employees should be of a certain size or appearance and that Karen Millen had made a genuine and serious attempt to resolve Mrs Whiterod's grievance. The Tribunal also concluded that the dress code did not reflect a policy that staff had to be of a particular size, stature or appearance; rather, it promoted a style of staff dress that reflected the Karen Millen brand.
Mrs Whiterod's constructive dismissal claim was dismissed. But would the outcome have been any different if she had brought a discrimination claim? Probably not. Last year the Employment Appeal Tribunal refused to accept that obesity in itself renders a person disabled. It is highly unlikely, therefore, that any discrimination claim based on her size, or a perceived "fattist" working practice or environment, would have been successful. However, the European Court of Justice is currently considering whether obesity can be a disability under the Equal Treatment Directive in the Danish case of FOA, acting on behalf of Kaltoft v. Billund Kommune, with judgment expected later this year.
This case is a useful reminder of the need for caution when drafting dress codes. Dress codes can evoke strong reactions. Therefore, regard should always be had to potential issues of discrimination and other possible sensitivities, whenever drafting or updating your dress code.
If you are thinking of introducing a dress code policy, or are in the process of updating your existing policy, please do speak to any member of our Employment Team if you would like any advice or assistance with the drafting. We would be very happy to assist.