By Hannah Hurst

It is common in the workplace for employers to set a dress code or an expectation of uniform for their employees, whether for reasons of safety, professionalism, or a combination of both.

Often dress codes will outline general limitations or guidelines for employees, such as requiring enclosed shoes with grip or prohibiting revealing clothing. Alternatively, other dress codes may designate a specific company unform, particularly in customer service or sales sectors of the retail industry so customers can easily and effectively identify representatives of the business.

Employers are permitted to specify dress requirements in the workplace if they do not discriminate against an individual. Discrimination is illegal and an employer cannot treat an individual unfairly because of a protected characteristic, such as their race, sex, age, disability, gender, or intersex status. Protected characteristics are defined in the Fair Work Act 2009 (Cth).

How can a dress code discriminate?

Discrimination can present in a range of forms; however, it can be broadly classified into two distinct categories; direct and indirect discrimination.

1. Direct discrimination

Direct discrimination occurs when a person overtly treats another less favorably because of a particular protected attribute which the person possesses. An example of direct discrimination in respect to dress codes, may arise if an employer refused to hire someone of a certain race because they did not want them to wear their cultural attire to work. Another example may be requiring an employee to cover up cultural tattoos.

2. Indirect discrimination

Indirect discrimination occurs when a company rule or policy applies equally to all employees yet has a discriminatory effect on a certain class of people who share a particular protected attribute. For example, if an employer prohibits employees from wearing any form of headwear, then this may constitute indirect discrimination against a religion which requires an adherent to do so.

Tread carefully

Another common example of discrimination is when a dress code specifies different requirements for men and women, such as women must wear skirts and men must wear trousers. Whilst the employer may simply intend for their employees to look professional, the effect of such a code constitutes direct discrimination based on gender.

What if there is a valid reason for discriminating?

An exception to dress code discrimination may only apply in circumstances where an employer can assert health and safety justifications. It is lawful for an employer to implement dress requirements which may be of a discriminatory nature if it is necessary to prevent hazards in the workplace. For example, an employer may wish to prohibit loose clothing if there’s a danger that such clothing may get caught in machinery, or an employer may require employees to be clean shaven and have their hair tied away from their face if they are handling food.

What does this mean for employers?

Employers should always ensure that dress codes are reasonable and if necessary, can be justified on the assertion of health and safety measures which are appropriate to a particular industry, and the nature of the role in which the employee works. Consideration should always be given to dress code requirements to mitigate any discrimination risks.

When was the last time your company reviewed it’s dress code policy? If you’d like to speak to a workplace expert contact us. If you’re an HR Assured client, you can contact our 24/7 Telephone Advisory Service.

Not an HR Assured client and need some advice? The team at HR Assured can support your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat.

Hannah Hurst is a Workplace Relations Consultant at FCB Group (our parent company) and HR Assured. She regularly provides advice to a wide range of businesses in respect to compliance with workplace laws and has a special interest in the retail industry. Hannah is also a fourth-year law and commerce student at Macquarie University.