Dress codes and the risk of discrimination

Many leisure and hospitality businesses maintain dress codes, uniform policies and grooming policies for their employees. These policies can be PR successes or nightmares depending on what is included in them. For example, last year, Virgin were featured in the press because of changes to their policy on uniform, allowing staff to choose which uniform to wear ‘no matter their gender’.

This time it is The Ritz London which has hit the headlines in the last couple of weeks due to rules which came to light from their Employee Grooming Policy. A prospective employee of The Ritz had been invited to the final interview for a job vacancy, at which point he was sent the Employee Grooming Policy where he read that staff could not have ‘unusual hairstyles such as spiky or Afro style’. The Ritz has stated that the policy was out of date and offered an ‘unreserved apology for this error’.

The Equality Act 2010 exists to prohibit discrimination and harassment on the grounds of any one of nine protected characteristics. Race is included as one of those protected characteristics and having hair in a certain style can be intrinsically linked to race.

Importantly, in October last year the Equality and Human Rights Commission (EHRC) published new guidance regarding the prevention of hair discrimination in schools. However, the EHRC did not extend the scope of this guidance to workplaces. The EHRC cited the legal case of Ruby Williams (Ruby Williams vs Urswick School), a mixed-race pupil who was repeatedly sent home from school because of its policy that banned afro hair of excessive volume.  

As to whether the policy at The Ritz was directly or indirectly discriminatory, the prospective employee who received the policy has said that ‘the word afro itself is obviously indicative of Africans’. Although this is not a case which has gone before the courts, the EHRC said school policies which ban certain hairstyles without making exceptions on racial grounds are likely to be indirectly discriminatory. 

Indirect discrimination is where the employer has a policy which puts people of a protected group at a particular disadvantage compared to others which isn’t objectively justified. For example, if an employer bans braids, it could be much more likely that it negatively impacts a black employee because of the potential cultural or practical importance of having their hair a certain way. There have been a number of court cases which have dealt with employment policies on issues including wearing religious clothing, religious jewellery or requiring women to wear high heels.

Instances such as The Ritz policy remind us that, in the context of a grooming or dress code policy, employers need to be careful with the wording of their policies to ensure that they are not directly or indirectly discriminating against an employee who has a particular protected characteristic. It also shows that as well as an employment law issue, it could be a significant PR issue for many businesses.

It is likely that we will see these policies being challenged more and more as diversity, equality and inclusion remains at the forefront of employees’ and employers’ minds. If this case encourages you to review your dress code and other policies, please get in touch with our employment team who will be pleased to help on 0118 977 4045 or employment@herrington-carmichael.com.

Darren Smith
Partner, Employment
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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