Can the requirements of a dress code be discriminatory?
Possibly – but not in the case of Miss L Lawrence v Q7 Group Ltd T/A Bundles of Joy Day Nursery.
Miss Lawrence, the claimant, worked as a nursery nurse for the respondent’s Streatham nursery branch. The nursery had a dress code policy which all staff were required to adhere to.
The dress code included wearing a pink polo shirt, which was provided by the nursery, black trousers and sensible black shoes.
Nursery polo shirt not available
Miss Lawrence was not provided with a pink polo shirt because the nursery did not have any left in her size. This was true for the duration of her employment from August 2018 until May 2019. She was offered an alternative pink polo shirt without the company logo but refused it – preferring to wait for the correct one in her size to come into stock.
Chose to wear black dress
As an alternative, Miss Lawrence chose to wear her own clothes and made requests throughout her employment for the correct polo shirt.
Due to the facts of the case, the tribunal had to consider Miss Lawrence’s anatomy. She was described as of ‘larger build including large breasts’. In terms of wearing her own clothes, Miss Lawrence chose to wear the same dress to work most of the time, which she described as ‘a basic stretchy dress’.
The tribunal, having seen CCTV stills of Miss Lawrence wearing the dress, described it as ‘figure hugging’ and that because of its nature, and depending on what she was doing, it could either ride up, making it quite small, or ride down, to become low cut and revealing Miss Lawrence’s cleavage. Miss Lawrence herself explained that the amount of cleavage on show could depend on what bra she wore.
Opinion of third party
As a result of the nursery’s poor Ofsted inspection, the nursery was provided with additional support by Lambeth Local Authority. Part of the support included an early year’s specialist interviewing all staff. This included Miss Lawrence who was wearing the black dress at her interview.
While not saying anything to Miss Lawrence at the time regarding her attire, the early years specialist advised Miss Lawrence’s manager to have a word about the amount of cleavage on show with it being ‘unprofessional in a nursery environment and could cause offence’.
The manager did have a word with Miss Lawrence about her attire being unprofessional with too much cleavage being on show. Miss Lawrence took this to mean she was being told her breasts were too big. She raised a grievance following the meeting.
Claims to the tribunal
Miss Lawrence then resigned and presented various claims to the employment tribunal (ET) including:
- Direct sex discrimination.
- Harassment related to sex.
The claims failed. The ET found that the manager had advised Miss Lawrence that she had too much breast on show, once, and to enforce the dress code.
Further, the ET found the dress code to be in keeping with a conventional nursery setting and that it did not discriminate between men and woman with it being gender neutral. The ET said if a hypothetical male employee had worn clothes that revealed more of his body than was consistent with conventional dress standards, he would have been treated the same.
The ET further found that Miss Lawrence had misunderstood the manager’s comments to imply that she was being told her breasts were too large. This was not the case albeit the ET had some sympathy for Miss Lawrence for misunderstanding the comment.
Conversations regarding personal dress and attire in a workplace can be uncomfortable. A non-discriminatory dress code addressing the requirements of smart professional attire can help avoid unnecessary and unwanted accusations of discrimination.