Cracking the Workplace Dress Code
6 August 2020
IN BRIEF: The purpose of a workplace dress code is to define the personal presentation standards employees are expected to meet while at work. Setting clear and reasonable expectations is crucial as non-compliance with the code may amount to misconduct, entitling management to take appropriate action. If they go too far however, dress codes can be discriminatory and therefore unenforceable. Here we discuss ways to enforce dress codes without risking discrimination claims.
A grey area in employment relations, enforcing dress codes can be tricky and requires careful case by case consideration.
Some workplaces still have strict corporate dress codes with restrictions on visible body art and rigid rules, but more and more office-based workplaces are making their dress standards more casual to attract more workers, encourage productivity, and – most importantly – to avoid discriminating.
JP Morgan, the biggest financier on Wall Street, changed their dress code in 2016 from strict corporate to business casual to fit this trend. Price Waterhouse Coopers Australia followed suit shortly after as part of their strategic plan. But even with laxity, there are still rules to follow.
Why Do Workplaces Need Dress Codes?
Regardless of industry, every workplace should have an easily accessible dress code in writing that is communicated to all staff – preferably during the hiring stage. Just as school uniforms advertise the ‘identity’ of a school, workplaces should use their dress codes as a way of promoting their values and culture, especially if they are customer, client or student facing.
Dress Codes Can Regulate More than Just Clothes
CCER’s dress code is outlined in our staff handbook and reiterated to employees before they commence employment.
The code outlines the required style of dress – business attire – with allowances on casual Friday, as well as stating the requirement for no visible body art.
Many dress codes don’t just regulate the clothing employees can wear, but also restrict visual body accessorising like tattoos and piercings. This type of regulation is common but can lead to challenges – bringing us to the following case study.
CASE STUDY: Dapto Leagues Club Changing Their Dress Code Policy
Dapto Leagues Club v Agius  FWC 7953 (18 November 2014)
When Dapto Leagues Club changed their dress code to ban piercings and visible tattoos, they ended up reporting a dispute to the Fair Work Commission when a waiter refused to remove her lip ring that she had worn for many months prior to the change in policy.
Deputy President of the FWC Peter Sams responded to the dispute by saying he had no jurisdiction to deal with it because the enterprise agreement said club policies and codes didn’t form part of the agreement.
He did state, however, that at the point of hiring, prospective employees should “be made aware of the Club’s requirements and if there was a subsequent breach, there may well be justifiable disciplinary ramifications.” But given the change in policy came after the hiring stage, Mr Sams foresaw “difficulties” if the club sought to discipline the waiter.
Make Room For Flexibility
Most employers have allowed for laxity during the COVID-19 working from home period, and in the same light, employers need to be prepared to negotiate the terms of their dress code policies to ensure they don’t discriminate, based on Australian anti-discrimination laws.
The following should be considered:
- Employers must accommodate employees with a disability if that disability prevents the employee from adhering to the code.
- Codes can generally set out different standards for women and men, provided they don’t inhibit equal access to employment or give a significant employment advantage to either sex.
So, with that in mind, what would you do if one of your male employees turned up to work wearing red nail polish? Is that allowable according to your code? Can an employee with religious devotions be exempt if they adorn religious accessories? These are not things many managers would have to consider, until the event occurs.
Based on Australian discrimination law, your dress code cannot discriminate based on gender, disability, race, age or sexual orientation. So, technically, if your dress code says that nail polish is allowed in the workplace, that should apply to all genders.
CCER recommends that our members make sure they know exactly how to respond to breaches based on what’s in their dress code. This will allow them to nip issues in the bud and avoid discrimination claims – like in the following case study.
CASE STUDY: Virgin Australia’s Hairy Situation
Virgin Australia International Airlines Pty Ltd T/A Virgin Australia v Taleski  FWCFB 4191 (24 July 2013)
In 2011, Virgin Australia terminated a male flight attendant who, they claimed, had refused to comply with their ‘Look Book’ by keeping his hair longer than the specified 4cm limit.
The flight attendant told the airline that he needed longer hair for religious reasons related to mourning the death of his mother. He also added that it was linked to his Body Dysmorphic Disorder (BDD), of which he provided medical evidence.
Virgin attempted to negotiate with the employee, but eventually terminated his employment with a month’s pay. The employee took the case to Fair Work for unfair dismissal.
Fair Work Commissioner Anna Lee Cribb ruled that there was no valid reason for the attendant’s dismissal as he had provided medical evidence of BDD, and she ordered Virgin to reinstate the attendant. Virgin appealed the decision.
Senior Deputy President Jennifer Acton, Deputy President Smith and Commissioner Julius Roe ruled that there were no errors in Commissioner Cribb’s decision and deemed the reinstatement as valid, rejecting Virgin’s appeal.
Handling Dress Code Violations
This can be a sensitive issue. If any of our members receive word that an employee has breached dress code, or witness an employee not adhering to the standards, we recommend the following:
- Observe the employee on more than one day to see if it was just a one-off faux pas.
- If the issue is ongoing, address it with the employee in a private meeting, reminding them gently about the code.
- Never question someone’s personal fashion sense but explain what is acceptable according to the standard set out in the code and determine if they need to adjust their clothes and/or accessories on the day.
While the enforcement of dress code is limited by law, the ultimate authority lies with management and a thorough dress code. Having a clear written code that is easily accessible to employees is essential.
Setting Clear Expectations: Review Your Current Dress Code
We highly recommend our members take some time to review their dress code and address potential areas of risk or discrimination, making sure to consider the following:
- Reiterate internally that the code is there to promote the company identity to clients, stakeholders, customers, and the public.
- Assure employees that there are exceptions, but ideally any breaking away from the code should be negotiated with management.
- Words like ‘classy’, ‘proper’ or ‘smart’ are subjective and if outlined in the code, may not stand up as grounds to claim misconduct if not adhered to.
- If you are modifying an existing dress code, consider a tapered introduction to allow time to settle in.
- If employees consistently break away from code, and gentle reminders don’t work, only then is a misconduct claim going to fly.
A workplace dress code is never set in stone. Like everything in workplace codes of conduct, dress codes can be changed at any time by management – and can also be temporarily adjusted, like on ‘casual Fridays’, team building days, or when working from home. It is important to remind employees of dress code if standards are slipping – but remember to allow for flexibility and exceptions, and if ever in doubt, call CCER for advice.
Disclaimer: CCER does not give legal advice and this information should not be taken as such.
Jessica Noble is the Communications Manager at CCER.