Does physical appearance at work matter?

Makeup has been used for centuries as a way to enhance beauty and self-expression and the majority of us women choose to wear make-up to work and in our social lives. Recent research has shown that makeup can have a positive impact on our self-esteem, confidence levels, and overall psychological well-being. Although many women choose to wear makeup at work and in our personal lives, a large percentage do not. How does that fit in with dress codes and can you as an employer insist that female employees wear makeup to work or would that amount to discrimination?

A tribunal has recently ruled that telling women to wear make-up at work is actually sexual harassment, with the judge ruling that telling a female staff member to “improve” their appearance with makeup was a “sex-specific “comment and that a man would not have been told that.  This was deemed to be discrimination due to their sex.

So how should we manage physical appearance in the workplace?

Dress code policy

As an employer you are free to implement a dress code which you feel is appropriate for your business, providing that the dress code is reasonable and both your male, female and non-binary employees have equivalent dress code requirements.

In fact some employers, particularly those with customer-facing employees, need to ensure their employees represent their brand properly because they are the image of the business and in this case, a company dress code policy is essential. This is particularly true within the beauty industry where their core business is based on physical attributes and how to enhance them.

There are many valid reasons why you as an employer may impose a dress’ code (corporate image, identification, health & safety) but it must relate to the job, be reasonable in nature and ideally be set out clearly in your organisation’s policy. Employees must also be informed of the policy and given enough time to buy the required attire. Your dress code must not be discriminatory against any of the nine‘characteristics’ protected by the Equality Act 2010 (age, disability, gender reassignment, religion or belief, sex, or sexual orientation, marriage/partnership, pregnancy).

Bona Fide Occupational Qualifications – In Very Few Circumstances

A bona fide occupational qualification (BFOQ) is a very narrowly interpreted exception to Equal Employment Opportunity (EEO) laws. A BFOQ allows employers to base employment decisions for a particular job on such factors as sex, religion or national origin if they are able to demonstrate that such factors are an essential qualification for performing a particular job.

There are very few situations where bona fide occupational qualifications are allowed. Not only are these instances rare, but employers need to be certain they have a valid business reason for excluding members of a protected class. A few examples of times where a BFOQ may be necessary include:

• Age limits for airline pilots.
• Religious institutions hiring only members of their own religion to be clergy members.
• Only hiring female employees to model for female clothing.
• Requiring employees to speak English fluently if speaking English is necessary to perform the job effectively.

So as an employer, take that recent tribunal outcome as a warning – you must approach this carefully, so as to avoid gender specific situations – especially now that we have transgender and non-binary genders to consider. For further information and advice please contact us here.