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ARTICLE ORIGINALLY PUBLISHED August 2018

DRESS CODES

The Government has published guidance about dress codes.

Some salons have a strict and detailed uniform policy and supply the uniform that must be worn. In this case there is a need for rules, such as the period before replacements are issued, what happens when the uniform is damaged and how to return the uniform on leaving etc. Of course if there is a uniform requirement the employer normally provides it. When the employee also has to contribute a number of employers have fallen foul of the minimum wage regulations. This is usually where a weekly deduction from pay has meant the employee effectively has been paid under the minimum wage.

In other salons there is a much more flexible position and there is a more general dress code. This often specifies what ISN’T acceptable, e.g. no trainers, more than defining what must be worn.

Others are very relaxed and individuality and diversity is actually encouraged. In effect, it’s almost wear what you wish and express your identity.

The ACAS guidance provides useful information for you to review whatever you have in place and is summarised below. It indicates:

  • A dress code is a set of standards that employers develop about what is appropriate for employees to wear to work and can be a legitimate part of an employer’s conditions. Personally I wouldn’t put it in the contract. I would put it in your salon or workplace rules as it’s the sort of area where there will be regular changes.
  • Dress policies for men and women do not have to be identical, but standards imposed should be equivalent.
  • It is best to avoid gender specific prescriptive requirements, for example the requirement to wear high heels. Any requirement to wear make-up, skirts, have manicured nails, certain hairstyles is likely to be unlawful.

A dress code could be dangerous and discriminatory, such as if female employees were required to wear high heels, because it treats women less favourably than men. Whereas a dress code which, for example, allows both men and women to wear trousers in the workplace is quite acceptable. You must also beware dress codes that could lead to harassment by colleagues or customers. Consequently any requirements on women to dress in a provocative manner are likely to be unlawful.

The following issue is more likely to exist in a salon environment. The national guidance suggests that “any requirement to wear make-up, have manicured nails, wear hair in certain styles or to wear certain types of skirts is likely to be unlawful, assuming there is no equivalent requirement for men”. A dress code that requires all employees to ‘dress smartly’ would be lawful, provided the definition of ‘smart’ is reasonable.

SALON ISSUES

There are specific and potential health and safety issues in a salon environment. For instance many salons specifically bar the wearing of flip flops. In many salons an overall or tabard is worn as “personal protective equipment”.

There may be circumstances where you make an exception to your dress code to accommodate the needs of a disabled employee. Similarly many salon owners agree to relax the dress code for pregnant staff in the latter stages of pregnancy as part of their risk assessments.

Transgender employees should be allowed to follow the dress code in a way which they feel matches their gender identity. If there is a staff uniform, they should be supplied with an option which suits them.

You might have a dress code relating to tattoos and piercings, requiring them to be hidden (tattoos) or removed (piercings). Is this out of date nowadays? We know one in three young people have a tattoo and almost half of women aged 16-24 are estimated to have a non-earlobe piercing. If you have this rule it appears to discriminate against younger workers and you might ask who and what is it for in 2018.

Remember, is it possible your clients are likely to follow the national trends in terms of tattoos and piercings? It is interesting during a recent discussion with salon owners one view was that older clients wouldn’t like facial piercing. Another owner argued the exact opposite saying some older conservative clients had had an interesting discussion with their therapist and totally changed their view. Personally I think second guessing the opinions of your clients is a risk that isn’t worth taking.

Finally, you should be aware of the potential issues relating to religious symbols that do not interfere with an employee’s work.

A lot of this is common sense and let’s remember if you require front of house staff or receptionists to dress smartly, this would be entirely lawful even if your dress code or uniform policy didn't extend to your therapists.

Lots of the issues relating to dress codes seem to overlap with discrimination. So, let’s look at one of the famous cases in our sector. It is worth noting that the individual was not even an employee of the salon and the issue related to dress and not a dress code.

Allegedly a hair salon owner refused to employ a hairdresser because she wore a headscarf. The applicant, Bushra Noah, accused the salon owner, based in Central London, of religious discrimination after she failed to offer her a job. She was told she lived too far away (but that is hardly an objective criteria). However, Bushra said on arriving for interview the owner was clearly shocked she wore a headscarf.

She won her case for indirect discrimination and was awarded £4000 for “injury to feelings”. The salon owner said she wanted stylists to reflect the "funky, urban" image of her salon and showcase alternative hairstyles.

I can understand the salon owners comments nevertheless it was easy for the tribunal to conclude that "There was no specific evidence before us as to what would (for sure) have been the actual impact of the claimant working in her salon with her head covered at all times”.

You might believe that clients are looking for a specific type of salon experience and try to profile your staff accordingly. An awareness of the law particularly in terms of discrimination is useful when you review your dress code.



David Wright Personnel

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