In today’s economic climate, service providers are under increasing pressure to provide their clientele with a first class service. Employees obviously play an essential role in allowing providers to meet and exceed these customer expectations, and proper training, management and support are important in ensuring that employees are able to deliver in this respect.

However, companies need to be aware that negative opinions can form from the moment of first contact with an organisation and, if you fail to make the right first impression, potential business can be lost before you even get a chance to deliver. In this context, ensuring that your staff are projecting the right image is as crucial as the service you provide. 

Current legislation does not cover less favourable treatment or victimisation on grounds of personal appearance (so-called ‘look-ism’) or weight (commonly known as ‘size-ism’). Despite recent calls by pressure groups for legislation to cover size-ism and look-ism, the implementation of any such law would be fraught with practical and public policy difficulties, and so this position is unlikely to change at any time in the near future.

Nevertheless, existing discrimination legislation does cover discrimination against employees or prospective employees on grounds of sex (including marital status, civil partnership and gender re-assignment), race (including colour, nationality and ethnic origin), disability, sexual orientation, religion or belief, and age. Even without explicit legislation on the subject, the present laws therefore still provide plenty of scope for individuals to bring claims if they consider that their personal appearance has resulted in them being treated less favourably than others in relation to matters such as recruitment, promotion or dismissal.

An example of existing laws being used in this way is the recent case of a one-armed shop assistant whose trendy retail employer took her off customer-facing duties because it feared her appearance might be off-putting to customers. The individual concerned brought disability discrimination proceedings and, unsurprisingly, the tribunal upheld her claims.

Courts have also had to consider the scope of an employer’s right to dictate its employees’ appearance in a number of cases involving the wearing of religious articles of faith in the workplace. In the most widely publicised of these cases, a British Airways employee brought proceedings on the grounds that she had been less favourably treated on grounds of her religion having been prevented by a company policy prohibiting the wearing of visible jewellery from wearing a necklace with a cross on it while at work. Her claims were rejected but the tribunal’s decision was based on something of a technicality and has left the door open for others to try again.

Employers also need to be careful not to allow issues relating to gender or age to distort the way in which they judge their employees’ appearance. Although there have not yet been any reported UK cases on the subject, discrimination claims have recently been brought in the United States by female waitresses who were required to undergo weekly weigh-ins and by air stewardesses who were given different types of uniforms depending on their size.

The US discrimination laws differ from those in the UK (for example, some states explicitly outlaw discrimination on grounds of weight). Nevertheless, it is possible to see circumstances arising here where female or older employees working in image-conscious environments might bring sex or age discrimination proceedings on the basis that they have been less favourably treated on the grounds of appearance than male or younger employees would have been.

Many employers regulate their employees’ appearance by way of a dress code and commonly this will be no more than a requirement for employees to wear “business-appropriate” or “smart casual” clothing, or perhaps a particular uniform. However, the dress code is likely to be much more prescriptive in sectors where employees’ personal appearance is particularly important. In such areas it is not unusual to see dress codes dealing with all aspects of appearance, from the way in which the employees wear their hair to the style of shoes they should wear, as well as covering personal hygiene and grooming.

On the face of it, such dress codes are equally applicable to all employees and so should not give rise to any concerns from a legal point of view. However, such detailed policies could in some circumstances give rise to discrimination claims and health & safety concerns.

For example, a delegate representing the Society of Chiropodists and Podiatrists recently complained to the TUC conference that dress codes requiring women to wear high heels risked causing health & safety problems as a result of the additional pressure put on feet and knees by wearing such shoes. As she put it, high heels are: “good for glamming up but they are not good for the workplace”. As well as the health & safety consequences involved, these comments also raised the question of whether requiring women to wear heels as part of their job constitutes sex discrimination, on the basis that men are not required to comply with the same requirement.

Men, for their part, might point to recent research that suggests that wearing ties can cause vascular constriction and eye problems. It remains to be seen what the courts will make of these sartorial quandaries if they are ever asked to consider these issues.

Problems can also be presented by employees with tattoos or body piercings. Although it is difficult to conceive of any discrimination claim being founded on a refusal to recruit someone because of their ‘body art’, issues might arise if an existing employee had a tattoo or piercing done on a visible part of their body, in breach of their employer’s dress code. If the employee was dismissed for the breach of the dress code and brought unfair dismissal proceedings, the tribunal would need to consider the reasonableness of the code. This would require the employer to show the business need that justified it placing such a restriction on its employees’ appearance, which may not always be straightforward.

In most cases, it will be lawful (and appropriate) for employers to take reasonable steps to ensure that the image projected by their employees matches their business needs. However, employers should be careful when making decisions regarding their employees’ appearance to ensure that these do not give rise to claims of discrimination on one of the prohibited grounds. It is worth bearing in mind that tribunals have generally taken a very narrow view of the “genuine occupational requirement” exception that appears in most of the discrimination legislation. It is therefore very unlikely to be applicable to a recruitment policy that involves placing young, attractive females into customer-facing roles, and any such practice (whether explicit or not) risks discrimination claims on a number of potential grounds.

Employers should also review dress codes to ensure that the requirements placed on employees do not pose any risk to their health and safety and do not directly or indirectly discriminate against employees of a particular type. Where detailed dress codes are in place, consideration should also be given to the business needs behind any particularly onerous requirements and whether the same results could be achieved with less restrictive obligations.