June 27, 2017

Can an Employer Legally Send Home an Employee for Not Wearing a Bra?

Charlie Dimmock was famous for it. And while her gardening skills and engaging on-screen persona ensured her enduring fame and goodwill from the British public, she is perhaps as well-known for being the ‘bra-less’ TV personality.

And while being bra-less was no problem for the producers of late 90s TV hit Ground Force, a recent case in the Daily Mail highlights the story of a female bar worker allegedly being sacked for not wearing a bra after allegedly being sexually harassed.

With dress codes a big talking point in employment law at the moment, we revisit the law around dress codes and enforcement for SMEs.

Principles for company dress codes

In May we covered the case of Nicola Thorp, and looked at the four key principles a company needs in their dress code:

  • They must avoid unlawful discrimination
  • They must apply to men and women equally, although different requirements may apply to each sex
  • Reasonable adjustments must be made for disabled people
  • Health & safety reasons may well underpin certain standards

This story touches on three key areas of law, but first here’s the full Facebook post from the barmaid, Kate Hannah, that originally publicised the story:

1. Sexual Harassment

Firstly, there is the potential for sexual harassment (before the alleged dismissal) where a colleague or colleagues have allegedly engaged in unwanted conduct related to a person’s sex that had the purpose or effect of (in this reported case) violating the female bar worker’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

2. Unwritten Dress Code

Second is the alleged unwritten dress code which prohibits female colleagues from not wearing a bra, a matter overseen by the principle of Indirect Discrimination.

Indirect discrimination prevents employers applying provisions, criteria or practices that are discriminatory on account of a person’s (in this reported case) sex (a rule that applies or would apply to female provision(s), criteria or practice(s) that would put them at a disadvantage to males) which the employer is unable to show is a proportionate means of achieving a legitimate aim.

3. Unfair (and Discriminatory) Reason for Dismissal

The final key area of law is the alleged dismissal for not wearing a bra which, if true, could be an unfair (and discriminatory) reason for dismissal directly related to the female bar worker’s sex.

If this were true, this could be found to be an act of direct discrimination by the employer. It is important employers remember that dismissals for such reasons do not need the employee to have the benefit of two years’ service.

The alternative factual situation could be a female member of staff being dismissed for wearing a tee shirt in breach of a correctly documented and communicated dress code that applies to all staff regardless of gender.

If this were the case, the dismissal (absent any other facts) may not be an act of direct discrimination.

More guidance on the latest HR & employment law legislation

Steps employers should take to ensure compliance around dress codes

In all of these areas employers need to ensure they have a well-drafted equality & diversity policy that is kept regularly up to date, issued to all staff and made available to them at all times.

In addition to having such a policy in place, employers should also run regular (usually annual) equality & diversity training for all their staff (including contractors).

Finally employers should, with the benefit of good advice, take any and all reasonable and consistent steps to correct any unlawful behaviours/policies etc and ensure any staff who have been affected by such behaviours/policies are protected – as is reasonably possible – from any further repeat.

Ultimately the employer should be in a position to be able to demonstrate, if tested, that they did not condone any unlawful behaviour and that they took all reasonable steps to prevent the behaviour and/or prevent anything happening of that description.

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About the author

Andrew Weir

Andrew has a wealth of experience in advising and representing clients of all shapes and sizes in a range of Employment Law topics from unfair dismissal through to all forms of discrimination and the complexities of TUPE. Andrew heads up our Advice Line and Advocacy teams who provide Employment Law advice to our clients 24 hours a day, 365 days a year and support our clients in presenting defences at Employment Tribunals throughout the UK & Ireland.