Veitch Penny LLP - Exeter | Crediton, Devon

Case

Department for Work and Pensions v Thompson
Employment Appeal Tribunal - (27 October 2003)

Issues

(1) Sex discrimination
(2) Policies and Procedures
(3) Dress code

Facts

Matthew Thompson was employed as an Administrative Assistant by Jobcentre Plus. In April of 2002 the Jobcentre Plus said it was introducing a new dress code for staff. The aim of the code was to reflect its wish for staff to be dressed in keeping with the businesslike way it wanted to provide enhanced services to the public. It stated that everyone would have to dress in a “professional and businesslike way”. Men had to wear a collar and tie (except in hot weather) whilst the women were to dress “appropriately and to a similar standard”. The dress code was supplemented by a list of prohibited items of attire. Compliance with the code was made compulsory as of 3rd June 2002, with salary advances of £150.00 being made available to staff to enable compliance.

Mr Thompson’s duties involved sorting post, filing and other clerical duties. He did not have to come face to face with the public and objected to the new code on this basis. He refused to comply with the code which led to him receiving a formal warning. He then agreed to comply but under protest.

He then lodged a complaint to the Employment Tribunal that he had been subjected to direct sex discrimination.

The Tribunal found in favour of the employee. It said that the reason Mr Thompson had to wear a collar and tie was because he was a man. As he had been forced to change the way he dressed, this amounted to less favourable treatment. In addition he had been subject to disciplinary action. An alteration in choice of dress was found to be unnecessary and discriminatory and constituted detriment to Mr Thompson.

The employer appealed the decision.

Decision

The Appeal would be allowed as the reasoning of the Tribunal had been flawed.

The Appeal Tribunal said the issue which should have been focused upon was not whether each sex had been treated differently but whether they had been treated less favourably than one another. The “but for” test it had applied was only applicable once it had been established that members of one sex had been treated less favourably than members of the other. The test should not have been used to determine whether less favourable treatment had occurred.

The Tribunal had also been incorrect in its application of the “package approach” (ie. the Tribunal should have considered the effect of one item in the overall context of the code as a whole). Applying this approach did not necessarily mean that members of one sex were treated less favourably than members of the other simply because of the differences in the code. The Tribunal had failed to consider whether the employee had suffered detriment in light of the overall requirement of the code was for all its staff to dress in a professional and business like way regardless of their sex.

The matter would be remitted to a freshly constituted Tribunal to consider whether an equivalent level of smartness to that required of a female employee could only be achieved by the male members of staff by requiring them to wear a collar and tie.

Comments

This is a case which we have previously reported in July 2003. The Employment Appeal Tribunal has over-turned the Tribunal’s previous decision and confirmed that employers can set different criteria for men and women within one overarching dress code without the risk of discriminating against one sex or the other.