HAVE A CLEAR DRESS CODE TO AVOID ALLEGATIONS OF SEX DISCRIMINATION AND VICTIMISATION

The case of JJ Food Service Limited v Mohamud UKEAT/0310/15/JOJ, should serve as a reminder that employers need to provide clear guidance about many aspects of work life in their manuals, particularly any applicable dress code.

Following internal disciplinary proceedings the Claimant was dismissed for wearing jeans to work contrary to his employer’s dress code, described in their manual as “appropriate, smart/ casual manner”. During those proceedings the Claimant and his employer had argued about what the dress code entailed.

The Claimant (who had insufficient service time to bring a claim for unfair dismissal) brought claims against his employer for:

• Sex discrimination (on the basis that female colleagues were able to wear “scruffy” clothes such as “leggings, see-through dresses, track suit bottoms” and
• Victimisation (on the basis that he had made an allegation of sex discrimination)

The initial Employment Tribunal:

• Dismissed his claim of sex discrimination on the basis that the “expression “smart/casual” did not include jeans, track suit bottoms or trainers” and that the “no jeans” rule were enforced with all employees, regardless of their sex but
• Upheld his claim of victimisation because the fact that the Claimant questioned the application of the dress code was a “significant contributory factor in the decision to dismiss him”.

Although, subsequently, the Employment Appeal Tribunal (EAT) allowed the employer’s appeal, it was because the ET provided insufficient reasons for their decision and that they had failed to ask themselves the correct question which was:

• “Whether the Claimant’s allegations of sex discrimination had had a significant influence on the decision to dismiss him” rather than
• Whether the “Claimant’s questioning of the application of the dress code policy was a significant contributory factor in the decision”

For Practice managers

In reality, this case could potentially have been avoided if there had been an effective explanation of the dress code within the employer’s manual. If the employer had taken the time to provide clear guidance as to what clothing was and was not acceptable, the employee would have been in no doubt that jeans were unacceptable and the employer would not have had to rely on any interpretation of what was regarded as “appropriate, smart/casual manner” dress.

CONSULTATION ON THE GENDER PAY GAP INFORMATION REGULATIONS

The government has launched a consultation (see the draft gender pay gap regulations which are due to come into force in October 2016).

https://www.gov.uk/government/consultations/mandatory-gender-pay-gap-reporting

From that date certain “relevant” employers (those with over 250 employees) will need to publish the:

• Number of male and female employees
• Differences in pay (both “mean pay” and “median pay) between male and female employees, to include details regarding bonus pay

The regulations will contain the formulae to calculate “mean pay”, “median pay” and relevant bonuses.

The consultation, which contains the draft regulations, is open to enable you to respond to the question “What, if any, modifications should be made to these draft regulations?”.

You can respond to the consultation online at https://consult.education.gov.uk/government-equalities-office/mandatory-gender-pay-gap-reporting-draft-regulatio

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