Frequently Asked Questions

Article

18 July, 2018

How far reaching can a workplace dress code be?

In summary, dress codes can be a legitimate part of an employer's terms and conditions of service, but any less favourable treatment because of sex could amount to direct discrimination. While dress policies for men and women do not have to be identical, the standards imposed should be equivalent.

In May 2018, the Government Equalities Office published "Dress codes and sex discrimination: what you need to know" offering employers guidance on workplace dress codes.

Whilst brief, the guidance sets out advice for employers on their legal responsibilities when setting a workplace dress code policy. The guidance covers sex discrimination, religious symbols, transgender issues, health and safety, and the need to make reasonable adjustments for disability.

When setting a dress code policy, employers are advised to:

  • Consider the reason behind having a policy.
  • Consult with employees, staff organisations and trade unions to try to ensure the policy is acceptable to both the employer and its staff.
  • Consider the health and safety implications of any requirement. For example, if employees are required to wear particular shoes as part of a dress code (rather than for personal protective equipment purposes), the employer should consider whether this may make staff more prone to slips and trips or injuries to their feet.

Employers should document the above process to evidence that the considerations and consultations have taken place.

The guidance advises against:

  • Gender specific prescriptive requirements, such as a requirement to wear high heels. Any requirement to wear make-up, skirts, have manicured nails, certain hairstyles or specific types of hosiery is likely to be unlawful (assuming there is no equivalent requirement for men).
  • Having a code that could lead to harassment by colleagues or customers, as any requirements for women to dress in a provocative manner are likely to be unlawful on those grounds.
  • Prohibiting religious symbols that do not interfere with an employee's work.

What sanctions are employees exposed to for any failure to ensure that employees have the right to work in the UK?

Under the Immigration, Asylum and Nationality Act 2006 and Immigration Act 2014, it is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK, or who is working in breach of their conditions of stay. Employers in breach of their obligations may be liable for a large civil penalty and commit a criminal offence.

The maximum civil penalty is £20,000 for each individual who does not have the right to work (having risen from £10,000 on 16 May 2014).

From 12 July 2016, an employer commits a criminal offence if it employs someone who it either knows is an illegal worker, or who it has "reasonable cause to believe" is disqualified from the employment by reason of their immigration status.

On summary conviction, an employer may receive an unlimited fine or imprisonment of up to six months (or both). Following conviction on indictment, the employer may also be subject to imprisonment. The IA 2016 increased the maximum period of imprisonment from two to five years with effect from 12 July 2016.

The Home Office may also seek to prosecute or remove from the UK (or both) anyone who is found to be illegally working in the UK.

The offence relates only to individuals who are employed "under a contract of service or apprenticeship, whether express or implied and whether oral or written". Businesses that use agency staff should ensure that the contract with the agency makes it clear that the agency remains the employer and is responsible for conducting the right to work checks.

Can an employee on a zero-hours contract be suspended pending a disciplinary investigation.

In short, yes. However, there are a number of issues to bear in mind.

As with every type of employment contract, suspension is a serious step and thought should be given to whether it can be avoided. No less consideration should be given to this step despite an employee being employed on a zero-hours contract. The period of suspension should be as short as possible and the suspension decision should be kept under regular review.

In the absence of a clear contractual right to do so, an employer will not be entitled to suspend an employee without pay. Accordingly, a suspended employee should normally continue receiving their normal pay and benefits. Just because a suspended employee works under a zero-hours contract does not mean they can be suspended on no pay, without a contractual right to do so. The calculation of pay can be a more complex issue where an employee's hours varied greatly from week to week on a zero-hours contract, but this is a process employers are required to complete on suspension.

If a claim is brought, although in some instances the employee finding alternative employment can be considered in mitigation, where the prior employment was pursuant to a zero-hours contract there is the possibility that the flexibility offered could mean that zero-hours shifts could be worked around and alongside the alternative employment. This may have an impact on any mitigation.

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