Veitch Penny LLP - Exeter | Crediton, Devon

Case

Thompson v Department of Work and Pensions
Employment Tribunal - (10 March 2003)

Issues

(1) Sex discrimination
(2) Dress code
(3) Less favourable treatment - comparators

Facts

The Respondent employed Thompson as an administrative assistant. He undertook general clerical duties which included sorting post and filing. He had no face-to-face contact with the public.

In April 2002, the Benefits Agency, for whom he worked, merged with the Employment Service. Thompson began work in the new merged organisation, known as Jobcentre Plus. His duties did not change in any way.

In June 2002, all Jobcentre Plus employees were informed of a new dress code. Whilst most accepted the new dress code, Thompson did not agree with its introduction. The dress code included the following requirements:

1) All male employees were required wear collar and tie;
2) Female employees were required to dress appropriately to a similar standard;
3) A few specific matters were banned for men and women.

The overall emphasis of the code was for employees to dress in a business like and professional manner. However, its practical effect was that the female employees continued to dress more and less as they had before the code was introduced, but men had to start wearing collar and tie.

Thompson did not comply with the code, and was subject to disciplinary proceedings. Thereafter, he complied with the code, but under protest.

Thompson made a complaint to the Employment Tribunal on the basis that he did not want to be treated differently from women by having to wear a shirt and tie.

Decision

Thompson’s complaint of sex discrimination was upheld. A collar and tie was a gender specific item of clothing. In practice, the code required a higher standard of dress from the male employees in comparison to the female employees. A woman could wear a T-shirt, and comply with the code, but a man could not.

In reaching its decision, the Tribunal had to apply the “but for” test and the “overall test”

Firstly, the Tribunal asked itself whether Thompson would have received the same treatment “but for” his sex. It concluded “but for” his sex Thompson would not have been required to wear a shirt and tie. Accordingly, because he was required to comply with the wording of the dress code, he was treated less favourably than a woman.

Secondly, when applying the “overall test”, the Tribunal found that Thompson’s treatment had not been treated even handed. A number of other similar cases were distinguished. In this case the wearing of collar and tie were mandatory and it was not gender neutral. Women had no restriction on their dress while men did.

As a result of this test, Thompson was found to have been less favourably treated.

He was also found to have been subject to a detriment on the following basis:

1) Thompson’s freedom of expression was restricted.
2) He was disciplined for not wearing a tie.

Comments

The Tribunal found that all the elements constituting sex discrimination were made out. The Respondent could not explain why there was a disparity of treatment other than in relation to the sex of the Applicant and the comparators. Its insistence on shirt and tie was an attempt to bring men’s dress up to a certain standard, but the requirements were not so demanding of its female employees.

This case does not mean that employers cannot implement dress codes, but it reiterates that any such code must not prove to be stricter on one sex over another.