The Court of Appeal ruled recently that it was not unlawful to sack a man because he wore a ponytail, despite the fact that female employees were not subject to a comparable sanction.
At first glance this decision appears to fall foul of the Sex Discrimination Act 1975, which states that: "a person discriminates against a woman if on the grounds of sex he treats her less favourably than he treats or would treat a man". The provision applies equally to discrimination directed at men.
The Court of Appeal's decision involved a young man who worked on a delicatessen counter at Safeway, the supermarket chain. All employees were subject to a smart-dress code that differed in its application between men and women.
Male employees were not permitted unconventional hair colouring or styles. The hair was expected to be tidy and not below collar length. Female employees were not precluded from having long hair, but were expected to keep shoulder-length hair clipped back. They too were denied unconventional hairstyles or colouring.
The court took the view that the decision to sack the employee for failing to discard his ponytail did not amount to unlawful discrimination. It held that all employees were equally subject to a smart-dress code that required employees to adopt a conventional appearance. This, however, did not mean that employers had to adopt every element of that code equally to both men and women, on the grounds that what is both conventional and smart for one sex is not necessarily so for the other.
The decision follows a ruling made in 1977, which established the legal guidelines on what constitutes an acceptable dress code. The ruling confirmed that it is not discriminatory for an employer to prohibit female employees from wearing trousers, even though their male counterparts, who were subject to a dress code, may not be subject to the same restriction.
Likewise, a female nurse failed to establish that there was sex discrimination involved when disciplinary action was taken against her for failing to wear her uniform cap. The nurse sought to argue that being forced to wear a cap was demeaning, and as male nurses were not subject to the requirement it was discriminatory. The industrial tribunal rejected this argument, pointing out that male nurses were also subject to a dress code even if its content differed to that applied to female nurses.
The Safeway case has re-established the notion that employers should retain a degree of discretion over what constitutes acceptable dress code and are entitled to make distinctions between the sexes when enforcing it. But this may not be the end of the argument. One issue raised in the Safeway case is the extent to which social attitudes have changed since the 1977 ruling was made.
The argument, which may well gain momentum in future years, is that as society is becoming increasingly tolerant of practices such as men wearing earrings or women wearing trousers, employers have reduced scope for treating the sexes differently in such respects.
The culture of the organisation itself is likely to dictate what constitutes a conventional dress code. A male executive at a record company or advertising agency may be in a stronger position to argue that a ponytail does not contravene the organisation's dress code than, say, a merchant banker.
It seems likely the debate, as to whether an employer's dress code which differs in its application to men and women continues to apply equivalent and comparable restrictions on both sexes, will continue in the light of changing social conventions. A policy which ceases to do so may leave the employer open to future claims of sex discrimination.
Sex discrimination claims should be submitted to the industrial tribunal within three months of the date on which the act of discrimination took place. Late applications are usually time-barred and legal aid is not available for pursuing such claims. Awards of compensation, unlike claims for unfair dismissal, are not subject to any limit.