The Virgin blouse wars throw a spotlight on the thorny issue of the extent to which employers can enforce a dress code
Dress codes at work have always been a thorny issue. Can your employer force a dress code no matter what, or are there constraints on their ability to do so? The subject is again under the spotlight, with reports that Virgin Trains’ female staff have rejected their new uniform as it includes a “flimsy” and “revealing” red blouse that they believe would allow passengers to see any dark coloured underwear.
The firm’s business support director, Andy Cross, has reportedly responded to the concerns, writing on the Virgin staff website: “It’s important that our people feel comfortable and so we will be issuing vouchers in the next few days for ladies to buy undergarments to wear under their blouses.” Apparently the vouchers are to the value of £20 and the implementation of the new uniforms has been put back.
There have been some previous colourful examples where employers have similarly sought to impose a dress code that only affected female workers. In one such case in 2009, a Muslim cocktail waitress was awarded £3,000 compensation on the basis that she had been discriminated against because her employers were forcing her to wear a tight fitting red dress during the summer months at work. She had argued that it made her “feel like a prostitute”. The tribunal found that as the male staff were not required to switch to similar “brightly coloured, figure hugging garb”, the dress code plainly related to her sex and was gender specific.
And two years ago, a complaint was made by Melanie Stark, a former member of staff at Harrods, who claimed she had been forced to wear full make up at work against her wishes.
So what are your rights if you are faced with a new dress code that you wish to challenge? The starting point is that employers are entitled to have a policy on dress. They do, however, have to be consistent in their approach and ensure that any dress code is proportionate to what they are trying to achieve. For example, a policy that hair should be tied back for health and safety reasons is likely to be judged too restrictive if the employee works in a call centre. Non-compliance with your employer’s dress code can be a disciplinary offence if you have no good reason for such refusal.
Uniforms are mandatory in some industry sectors where a unified corporate identity needs to be projected – transport being the obvious example. In other cases, the dress code will be nothing more than “smart”. This does not mean, however, that there has to be an identical dress code for men and women. Indeed, it has been held that a policy requiring men to wear ties does not amount to sex discrimination if women were also required to wear something of a similar smart standard. The test here is “whether the equivalent level of smartness in men can only be achieved by requiring them to wear a collar and tie”.
The difficulty arises where there is a greater difference in the nature and appearance of clothing that men and women are required to wear, which could in turn give rise to a finding that the policy is discriminatory on the grounds of gender.
If there is a dress code that applies to women but not to men, or if the dress code is applied more strictly to one sex than the other, this could amount to direct discrimination. Alternatively, there could be a claim for indirect discrimination. To succeed, a blanket provision relating to dress must negatively impact a specific person or group sharing a “protected characteristic” (sex, age, disability, race, religion) unless its requirements can be objectively justified. In the Virgin case, the protected characteristic is the fact they are female.
And so for Virgin, it is not the fact that the women are being asked to wear a uniform, rather than the male staff (which would amount to direct discrimination), but that the “nature” of the uniform affects the modesty of the female staff only – which could open it up to claims of indirect discrimination.
Whether the offer of vouchers to buy undergarments for use with the new blouses will be acceptable to the female staff as opposed to a “back to the drawing board” approach remains to be seen.
Have you ever complained about a new uniform or dress code? Did you employer take any action?
Philip Landau is an employment lawyer at Landau Zeffertt Weir Solicitors
As the Kick It Out T-shirt row shows, balancing employees’ rights with company policy is not always a black and white issue
When Rio Ferdinand rebelled against the instruction of his boss and refused to wear the Kick It Out campaign T-shirt in the warm-up to Manchester United’s Premier League match on Saturday, Alex Ferguson threatened to take action.
The matter has now apparently been resolved and put down to a “communication issue”, but not before the Professional Footballers’ Association promised to defend the player’s “rights as a human being, never mind as a footballer”. But what about his rights as an employee? Can an employer insist that you comply with the company’s uniform or dress code? And what steps can be taken if you do not comply?
In Ferdinand’s situation, his non-wearing of the campaign T-shirt was more a case of undermining Alex Ferguson’s authority in fairly unusual and specific circumstances. In most employment relationships, however, your expected dress code and appearance will be set out in your contract of employment or employee handbook.
An employer can legitimately tell their employees to dress in a certain way at work, and workers generally do have to comply with this – as long as there is a good reason for such a code. If you are in an environment where you are meeting others and therefore represent the “public face” of your employer, then it is entirely in order for the code to specify that you dress smartly.
Similarly, you be may required to dress in a certain way for health and safety reasons – wearing hard hats on a building site is the obvious example. In other cases, a uniform will be a necessity, for example, if you work for a transport firm or shop. In each case, a minimum standard of dress will be justified by employers to project a professional image or promote a sense of recognition or identity as part of an employer’s team.
Employers do, however, have to be consistent in their approach and ensure that any dress code is proportionate to what they are trying to achieve. Non-compliance with your employer’s dress code can be a disciplinary offence, and ultimately you could be dismissed for not complying with the request if you have no good reason for refusing – unless you have been given no prior warnings or adequate time to comply.
There will always be the thorny issue over whether being disciplined because you do not fit in with your employer’s dress code or “look” can amount to a breach of your human rights, or even sex or race discrimination. In 2009, a disabled worker won a tribunal claim against the flagship London store of Abercrombie & Fitch after accusing the company of “hiding” her in a stockroom at its London store because her prosthetic arm didn’t fit with the firm’s “look policy”.
In the case of Eweida v British Airways, however, an employment tribunal found that a Christian employee who was sent home when she insisted on wearing a cross visibly, in breach of the employer’s uniform policy, did not suffer indirect discrimination. The case is going through the European court of human rights.
The guiding principle in relation to an employee’s standard of dress should, if possible, be based on the impact of that person’s dress upon their ability to do the job, after the reasonable expected standards of the employer are taken into account. There will always be a divergence of opinions and this, of course, is only to be expected.
Are you expected to dress in a certain way at work, and do you agree with it? Or have you cast a surprised eye over how some of your work colleagues dress?
Philip Landau is an employment lawyer at Landau Zeffertt Weir Solicitors
Hot weather can make work environments unbearable. What are your rights, and what is your employer obliged to provide?
How hot is my workplace allowed to be?
There is no set maximum. The Health and Safety Executive (HSE) used to say that “an acceptable zone of thermal comfort for most people in the UK lies roughly between 13°C (56°F) and 30°C (86°F)”, but it now just states that “during working hours, the temperature in all workplaces inside buildings shall be reasonable”.
What is reasonable can vary: if you work in a kitchen it will be very different from if you work in a cold store. But the HSE does have a defined measure of at what point an employer needs to investigate workplace temperatures – if your office is air conditioned your employer must assess things if 10% of staff complain; for non-air conditioned offices the figure is 15%; and for shops and warehouses 20% of staff need to make a complaint.
The TUC has been campaigning for a legal maximum temperature for some years – it believes it should be set at 27°C where people are involved in strenuous work, and 30°C for all other employment. The organisation’s head of health and safety, Hugh Robertson, says it is “absolutely ridiculous” there is no set limit. It is down to local authorities and the HSE to enforce the current “reasonable” rule and no action has yet been taken. Robertson says: “We can’t sue an employer unless someone has a stroke or dies of heatstroke.”
Does my employer have to provide air conditioning?
No, but Robertson says sensible employers will use mobile air-conditioning units and fans to keep workers cool. “An employer with a brain will know they are not going to get the best out of their employees if they are too hot,” he says.
Can my boss force me to keep wearing a tie?
Yes. Employers are allowed to tell their workers to dress in a particular way in the workplace, regardless of what the weather is like outside. This might be written in your contract or an employee handbook, or you may have been instructed when you started your job.
Men in the workplace may feel a bit hard done by if they have to keep wearing a tie while their female counterparts can feel a cooling breeze around their necks, but according to Philip Landau, employment lawyer at Landau Zeffertt Weir Solicitors, employers can justify requiring different dress requirements for men and women.
“In Department of Work and Pensions v Thompson , the Employment Appeals Tribunal said that requiring men to wear a collar and tie did not necessarily amount to sex discrimination if that was the only way of achieving equal levels of smartness for men and women,” Landau says. “This may not apply in every case and prudent employers would normally have a policy in place if they wanted to insist their male staff should wear a collar and tie.”
Can my boss force me to wear a uniform even if it’s hot outside?
Again, yes. Landau says employers must consider objections from employees at having to follow a required dress code, but it seems citing the weather is unlikely to cut much ice. “In many sectors where there are customer-facing roles, such as retail or the travel industry, uniforms promote a corporate identity and professional image,” he says. “Employers will find it much easier to justify a dress code in these circumstances, even in hot weather where lower cut tops and more informal dress would be the clear preference of those battling through an oppressive work environment.”
Does my employer have to provide me with cold water to drink?
Your employer is legally obliged to provide you with drinking water. This does not have to be chilled, but if you have a fridge you could also put some tap water in a bottle and chill your own.
How about ice creams?
Nice try. Of course there is no legal obligation for your employer to treat you to a Solero in any circumstances, but bosses should know that a well-timed round of lollies can engender goodwill that lasts much longer than the typical British summer.
A tribunal has upheld a company’s decision to sack an employee for gross misconduct after he posted offensive comments about a co-worker on Facebook
Workers be warned: taking to your Facebook page or another social networking site to make derogatory comments about a colleague is not a wise move. Comments that would be construed as bullying in the office are not out of bounds to employers if you make them in public, as one worker found to his cost at a tribunal in Belfast.
It upheld a decision by a firm who dismissed an employee for gross misconduct after he posted offensive comments aimed at a co-worker on Facebook. In the case of Teggart v TeleTech UK Limited, Teggart made a Facebook posting referring to the promiscuity of a female work colleague (“Ms A”) from his home computer, and in his own time. Ms A had not seen the Facebook comments, but was told about them by another colleague. Instead of removing the offensive remark, Teggart posted a further lewd comment about Ms A, who was naturally upset and distressed by the comments. The incident was reported to TeleTech by a concerned colleague of Ms A and Teggart.
The tribunal found that the Facebook posts did amount to sexual harassment, and were contrary to the employer’s disciplinary and code of conduct policies. In accepting the employer’s decision to dismiss, the tribunal rejected Teggart’s argument that his rights under the Human Rights Act 1998 had been interfered with because he should not have been dismissed for making “private” comments to his circle of friends on Facebook.
The tribunal said “when [Teggart] put his comments on his Facebook pages, to which members of the public could have access, he abandoned any right to consider his comments as being private”. This seems a pretty sensible approach.
It’s not just on Facebook that employees can come unstuck if they are seen to be bullying colleagues. The following things could all be construed as cyber bullying:
• Sending offensive or threatening emails to a colleague, especially where that person has asked you to stop.
• Texting or tweeting.
• Sharing a person’s private data online.
• Bombarding someone with emails where previous email approaches have been rejected. This can happen where a superior is placing unrealistic expectations on another employee, leading to the distress of that employee, and can amount to cyber bullying in extreme cases.
Such behaviour poses a serious concern for employers who will need to consider if there is a right to interfere with employees’ personal activities, especially outside work. Employers have a duty of care towards their staff and shouldn’t refrain from taking action because the bullying activity is taking place outside work or, for example, via a personal mobile phone.
Many employers already have well drafted policies in place enabling them to monitor what you do at work, and setting out what conduct is deemed unacceptable whether during work time or otherwise. This will make it far easier for an employer to raise a successful claim for misconduct against the cyber bully wherever and however it is perpetrated.
One advantage in dealing with cyber bullying over traditional bullying is that it occurs in a public domain and is not easily hidden. Emails, text messages, posts and blogs can often be traced, even if the bully posts anonymous comments.
If you do find yourself on the receiving end of abuse from a colleague, you should bring this to the attention of your employer as soon as possible. It is easier said than done when it’s your line manager who is the problem, of course, but you really shouldn’t suffer in silence.
Philip Landau is an employment lawyer at Landau Zeffertt Weir Solicitors
There are strict limits to what interviewers can ask jobseekers – and inquiries about your Facebook password, or your plans to start a family, are just not allowed
Have you ever wondered what personal information or data a prospective employer is entitled to ask you for at interview, or their legal obligation to look after such information once they have it?
Associated Press recently reported that some employers in the US are now taking inspection of social media profiles to a new level, with candidates asked to provide passwords to their personal Facebook page or other social network sites they use. This led to Facebook’s chief privacy officer, Erin Egan, posting a Facebook note warning that the company could “initiate legal action” against employers that demand Facebook passwords, as this violates the website’s terms of service.
The legality of the practise in the US is not clear, but could it happen in the UK? It is unlikely, as it would potentially put employers in breach of the Data Protection Act 1998, constituting “excessive” information about an individual, and I cannot see the Information Commissioners Office allowing it.
But of course, we may never know about desperate job seekers, faced with such a request, who are prepared to acquiesce.
So, what other information is a prospective employer going to have difficulty eliciting from you at interview stage? Before you are offered a job, you cannot be asked health or disability related questions – including how many days’ sickness you had in your previous employment (although there are limited exceptions where it is a necessary requirement of the job).
After you have been offered a job, health inquiries can be made, but only to ensure that there are no obstacles to being able to carry out your role. Your employer cannot ask for a medical report on you without your knowledge or consent.
In addition, you cannot be asked your age or date of birth. Crafty employers do try to get round this by posing related questions, such as asking an older applicant how long he or she saw herself working until retirement, but this would also be unlawful.
Interviewers should avoid asking questions about your marital status, whether you have children, or are planning a family soon. It is acceptable, though, to be asked whether there are any responsibilities that could interfere with your attendance at work. You should furthermore not be questioned about your sexual preferences.
If, on the basis of your name or appearance, an interviewer were to ask about where you were born, your race, native language, or religious views or affiliations, this could be seen as potential discrimination if you are not offered the role. You should be interviewed on the merits of your expertise for the job only.
Once your employer has gathered data on you, there are strict rules under the Data Protection Act as to how such data is stored and used, whether you are offered the job or not.
Your employer may hold sensitive information relating to your health, racial origins, criminal history, and in some cases your internet and email use. The act provides for any data stored to be relevant, not overly excessive and not kept for longer than necessary. Even as an unsuccessful job applicant, you may find a company retains your CV on file in case vacancies arise in the future; again, this should only be kept for a reasonable period of time.
You have the legal right to apply for a copy of your personal file, and to ask your employer to correct or delete information that is inaccurate or likely to cause you damage or distress. You can also claim compensation from your employer if you suffer a detriment following their breach of their legal obligations.
So there are safeguards. But there are some employers who will flout the rules and get away with it, especially where employees are not aware of their rights. And in the case of questions which should not be asked at interview, many desperate and unguarded candidates simply won’t care, as they strive to be as transparent as possible to secure that elusive job.
Philip Landau is an employment lawyer at Landau Zeffertt Weir solicitors
Regulations govern minimum work breaks, but are widely disregard by both employers and employees. What is your experience?
Hong Kong’s stock exchange traders are up in arms after their lunchbreak was cut to 60 minutes – only a few years ago they could take two hours. The break arises from the complete shutdown of the exchange at lunchtime, something that is rare outside Asia. In London, the exchange is open for a full eight and a half hours.
So what rights do UK workers have for rest breaks and do they take them? The Working Time Regulations 1998 entitle people to a break of 20 minutes when a day’s working time is more than six hours. The right is limited to one 20 minute break a day if the shift is at least six hours, even you ultimately work say a 12-hour day.
Additional breaks may be given by your contract of employment with an hour for lunch not being uncommon. While employers must ensure that workers can take their rest period or breaks, they are not required to force workers to take them.
The rules also states that the break must be in one block – not, for example, two 10-minute chunks; it cannot be taken off one end of the working day – it must be somewhere in the middle and you are allowed to spend it away from the place where you work. However your employer can stipulate when it is taken, as long as it meets these conditions.
The rights to breaks apply differently in some situations, such as where you constantly work in different places making it difficult to work to a set pattern or you are working in an industry with busy peak periods, like agriculture, retail or tourism. In these cases, instead of getting normal breaks, you are entitled to “compensatory rest”, where the break is taken later, ideally during the same or following working day.
If you work in air, road or sea transport you are what is known as a “mobile worker” for the purposes of the regulations, which means you are excluded from the usual entitlements and instead are entitled to “adequate rest”. This is a regular rest period long enough to make sure you do not cause injury to yourself or anyone around you due to tiredness.
If your employer does not allow you to take your breaks against your wishes, you can lodge a formal grievance and if necessary make a claim to the Employment Tribunal. If you belong to a union, you could contact it first. You should try to resolve the matter informally first if possible.
The rules are there, but research suggests we are not taking all of the time we are entitled to. In January 2011, research by BUPA (pdf) found just three in 10 (30%) employees were taking a lunch hour. It also found that more than a third (34%) of employees experienced pressure from managers to work through their lunch hour, while half consider the weight of their workload prevents them from taking a break.
According to research from Business Environment in which 3,000 office workers were surveyed, some industry sectors are more into taking lunch hours than others. For example, 38% of banking and insurance sector workers enjoyed an hour-long lunch break, while 35% of catering staff never take lunch.
The impact on workers not taking a break is significant. Many studies show an overworked and stressed worker will ultimately prove unproductive and overwork could have health implications. It could also lead to negligent mistakes which could cost the employer dearly. I have seen many such cases, especially in demanding employment sectors such as the financial industry.
So what’s your experience of lunchbreaks? Does 60 minutes sound like a good deal or a bad one?
• Philip Landau is an employment lawyer at Landau Zeffertt Weir solicitors