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Jandals at Work? - The Challenges of Summer Dress Code

22 February 2016

Landing on the desks of employment lawyers and HR managers at this time of year are issues that arise around work attire.  The combination of employees transitioning back from the beach to the office together with soaring summer temperatures often results in employers having to confront the grey areas of workplace policies on staff appearance.

It is commonplace to set certain standards of presentation for safety reasons, like covering hair so it does not contaminate food products, or removing jewellery so it does not get caught in machinery.  Employers can also set a standard on appearance.  Expected standards vary widely from business to business and industry to industry. The concept of what a professional should look like has expanded and the interpretation of what appropriate work attire looks like across the globe has become increasingly informal.  Last year the Australian Department of Immigration tried to pull in the reins and issued a dress code ordering employees to stop turning up for work in (amongst other things) onesies and ugg boots!

If the dress code in your business is likely to require intermittent review, a practical tip is to keep it out of your employment agreement. If it is in the employment agreement it will need the employee’s consent to change it.  Put this in the workplace policy manual and ensure you bring it to the employee’s attention and are consistent in how you enforce it.

Once you have a sound policy in place that is appropriate to your business, the question turns to its enforceability.  For the most part this will simply be a matter of ensuring that issues arising are handled fairly and reasonably at all times.  Often these are initially managed by a discrete discussion with the employee, escalating to clear instruction on expected standards, and if it is not resolved, considering elevating it to being handled as a disciplinary issue.  However dress code transgressions can be as diverse as the fashion pages themselves.  A potential minefield awaits and employers need to be ever mindful of potential issues around equality, discrimination, and reasonableness.  This was the case in the recent US case where a woman wearing a hijab was denied a job on the grounds that it violated the potential employer’s “look policy”.  The District Court ruling went in the job applicant’s favour and the company successfully appealed. The US Court of Appeal basically held that the job applicant had not notified the company that she had a conflict with the look policy.  Happily, order was restored when the matter proceeded to the Supreme Court last year and it ruled in the job applicant’s favour with damages and costs awarded.[1]

Best practice is to ensure that any policies are not only based upon sound business reasons, but they are imposed clearly, consistently and reasonably.  It is equally important to engage with employees to address any issues and also to ensure that policies are clearly communicated throughout the business.  Failure to do this can lead to employee grievances together with associated costs and risk of reputational damage.

[1] Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores,575 U.S. Supreme Court (2015).

This article is intended to provide a general guide on this topic.  Legal advice should be sought about your specific circumstances.

 

Carolyn Gardner is a Senior Solicitor in the Employment team at Norris Ward McKinnon. Contact Carolyn at carolyn.gardner@nwm.co.nz

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