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Man wins tie sex ruling - 11th March 2003
"The draconian application of the dress code in Jobcentre Plus is discriminatory"
Crucially the tribunal ruled: "We found that the requirement to wear a collar and tie is gender based. There were no items of clothing that were imposed on women working at the same establishment. We should ask the question but for the applicant's sex would he have been forced to wear a collar and tie? The answer to that question must be "No". Therefore, because he was forced to wear a collar and tie at work, the applicant [Mr Thompson] was treated less favourably."
"We noted that there were items of clothing each sex could not wear but there were no items of clothing women had to wear. We noted that both men and women would be disciplined if they flouted the dress code but the dress code as set up gave women more choices in relation to what they could wear."
At present no costs have yet been awarded as this will be the subject of a future Tribunal, the date of which is yet to be set.
PCS understands that Department of Work and Pensions management will be appealing the decision. Reacting to this decision Mark Serwotka PCS general secretary said: "We are obviously disappointed that management have already announced that they will be appealing this decision. We had hoped that in light of the unanimous decision of the Tribunal management would sit down and discuss with PCS a dress code policy that works. We believe management should accept the finding of the employment tribunal and sit down with the union."
Later still (12 & 13/03/03) Mangement are sending out conflicting signals: apparently they are choosing not to take action over those not wearing ties (M or F) but will continue to blunder on "enforcing" the rest of the now discredited dress code. Obviously the hole is not deep enough for them to stop digging yet....
HELD AT: Manchester ON: 24 February 2003
CHAIRMAN: Mr K E Robinson MEMBERS:Mr T Brogan
The unanimous decision of the Tribunal is that the applicant has been discriminated against on the grounds of his sex contrary to the Sex Discrimination Act 1975 (SDA).
1. The issue for the Tribunal to decide was whether the requirement under the dress code of the respondent’s organisation to wear a shirt and tie amounted
to sex discrimination. We also had a duty to interpret the relevant legislation in a way compatible with the Human Rights Act 1998 and the European Convention on Human Rights, in particular Articles 8, 10 and 14.
2. The submissions of both parties’ representatives were conveniently and helpfully set out in writing for the Tribunal, details of which do not need to be rehearsed in full here.
3. Both advocates spoke to their respective written representations.
4. Mr Carr expanded on his written representations by reminding us that the applicant accepted that the putting on and wearing of a tie in itself was not onerous and therefore the applicant was put to no disadvantage when compared with fellow workers.
5. Indeed, Mr Carr urged us to conclude that women were more at risk under the dress code because they had no or little guidance of what they should or should not wear.
6. Mr Carr then took us through the salient facts and the judicial guidance in the cases he commended to us for our consideration. He was of the view that no sex discrimination had taken place, nor were there any human rights issues of relevance to the case.
7. He - urged us when coming to our decision not to allow the applicant to succeed for that would mean that the dress code policy would be unravelled and the will of the majority would have to yield to the tyranny of the minority. In his view, we must therefore use a common sense approach when coming to our decision.
8. Finally, Mr Carr told us that unless we were able to distinguish this case on the facts from those of Schmidt, Smith, Blaik and Cootes (see below) we would have to find for the respondent.
9. Ms Monaghan suggested that if we did simply use a common sense approach we might fall into the trap of coming to a decision which reinforced gender stereotyping.
10. She believed the cases of Schmidt and Smith and those judgements that flowed from the decisions in those cases were not now good law.
11. Ms Monaghan, in her turn, took us through the facts of this case and the cases she pleaded in aid of her arguments, explaining, in particular, that the “but for” test in James (see below) was the test we should apply when looking at whether the applicant had been subject to less favourable treatment.
12. She urged us to look at the relevant sections in the SDA and interpret them on the wording. She felt that “dress codes were the last vestiges of gender-specific prejudice”.
13. She further urged us to interpret the facts of this case under the overarching umbrella of the Human Rights Act and the Convention Articles referred to above.
The Evidence and Documents
14. We took oral evidence from the applicant (he read two statements), Mrs Mitchell, an Administrative Officer colleague, and Mr Sean Nelson, also an Administrative Officer who took the photographs of the applicants work colleagues. Short written statements with coloured photocopies of photographs attached thereto were presented to us by the applicant’s representative for Pat Wray, Julie Willis, Lisa Wilkins and Caroline Foster. Those women did not, however, give oral evidence.
15. For the respondent we heard from Mr Moran, the Director of the North West Region, Miss Claire Drury, Income Support Team Leader, Mrs Kay Taylor, Income Support Manager, and Mrs Sue Jenkins, Job Centre and District Manager.
16. A joint bundle of documents was referred to throughout. Any reference thereto will have the page number in brackets inserted at the appropriate part of this decision.
17. The-judgments in the following cases were commended to us and we have considered the judicial guidance contained therein:-
Schmidt v Austicks Book Shops Limited (Schmidt) 1977 EAT;
18. We were also referred to the following documents:
i.Law of Human Rights — Clayton and Tomlinson;
ii.Recognising New Kinds of Direct Sex Discrimination, Transsexualism, Sexual Orientation and Dress Codes — Robert Wintemute;
iii.Dress Codes and Freedom of Expression — Clayton & Pitt.
19. Set out below are the facts of the case upon which we have made our decision. We have not attempted to set out -all the evidence, just that evidence which we deemed to be relevant. There was little dispute, as between the witnesses, over the facts.
20. The applicant is an Administrative Assistant. His responsibilities include sorting post, filing and other clerical duties.
21. He did not come face-to-face with the public during his 7 hour 24 minutes working day.
22. For a few minutes each day he had to carry crates of files. Women also had to do this. It was not onerous. No special clothing was handed out to be used whilst doing this part of his job.
23. In April 2002 the Benefits Agency (BA) (for whom the applicant worked) and the Employment Service (ES) merged. The new organisation was named Jobcentre Plus (JC+).
24. We heard no evidence to suggest the applicant’s job changed when the merger took place.
25. A dress code was brought in for all JC+ employees on 3 June 2002.
26. There was some opposition to the dress code from the workforce.
27. The vast majority of the 90,000 employees of the respondents, however, accepted the dress code.
28. Forty plus applications to the Employment Tribunals are awaiting a decision in this lead case.
29. The relevant part of the code states (pages 32 and 33):-
“The standard itself as you will see from the attached note, is very simple. For men the basic standard is to wear a collar and tie; for women to dress appropriately and to a similar standard.. There are just a very few specific items of clothing that we believe do not meet the standard and these are outlined in the attached note...
“The Jobcentre Plus dress standard will apply from 15 April 2002. It requires all Jobcentre Plus staff to dress in a professional and businesslike way.
“Men should wear a collar and tie. However ties may be removed in hot weather with management permission. Women should dress appropriately and to a similar standard. All staff should wear footwear appropriate to the business environment.
“Within these simple rules staff are free to decide what clothes to wear. However they should not wear obviously inappropriate dress such as:
30. The code can be conveniently split into four requirements:
(a) for men it was mandatory for them to wear a collar and tie
(b) for women to dress appropriately to a similar standard
(c) there was a list of a few specific items banned for both men and women although that list was not exhaustive
(d) the overarching requirement was for employees to dress in a professional and businesslike way. However the dress code did not amount to a uniform.
31. There was a written dress code for ES employees prior to June 2002. There was no specified dress standard for BA employees prior to that date.
32. The ES dress code had been one which required employees to present a clean and tidy appearance and to dress in a businesslike way. There was no specific requirement to wear a particular item or items of clothing.
33. The respondent’s witnesses sought to persuade the Tribunal that the standard of dress was that of a bank or building society. On the evidence presented that was not the standard imposed but we accepted that the management expected the staff to “dress smartly” (page 32).
34. The raison d’etre behind the code is set out at page 34A of the bundle.
35. The upshot of the imposition of the code was that women continued to dress more or less as before but men had now to start wearing a collar and tie.
36. The applicant did not wear a collar and tie to work prior to June 2002.
37. We accepted, because the respondent’s witnesses agreed with this proposition, that the photographs, attached to the statements referred to above, represented what those women did wear at work even though we only
38. Other departments of the Department for Work and Pensions did not include in their dress code a mandatory requirement to wear a collar and tie but all of the dress codes stressed the “professional and businesslike” standard as an overarching requirement (EWP Managers page 132; Pensions Department —page 137; Disability and Carer Services — page 203).
39. The applicant did not conform and on 11 June 2002 was warned about the consequences of non-compliance, which was that he would be disciplined if he continued to flout the code.
40. The applicant continued to refuse to wear a collar and a tie and was eventually disciplined on 18 June 2002 (letter page 91). He was given an oral warning. His misdemeanours included not wearing businesslike collared shirt and tie, wearing jeans and not wearing his name badge. -
41. It was accepted by all parties that the. applicant would have been disciplined for not wearing a collar and tie even if he had worn acceptable trousers and had worn his name badge. It was also accepted that a woman would have been disciplined for not wearing her name badge and for wearing jeans.
42. There were various stages to the disciplinary process. These included oral warning, disciplinary penalties including written warning, a written reprimand, promotion ban, financial penalty at 5%, a financial penalty at 10%, and ultimately dismissal.
43. The applicant once disciplined chose to comply but under protest and issued these proceedings.
44. He agreed that having to wear a tie was not mentally or physically onerous to him but he did not want to be treated differently from a woman and did not want to wear a tie.
45. During the last six months of 2002 junior managers sought guidance from senior managers on how to implement the code. The concern being expressed related to the consistency in application of the code.
46. Both male and female employees flouted the code at various times during this period but no-one else was disciplined because, once those employees were informally warned, they conformed. The written guidance (page 155, page 156) shows that there were 18 females and 7 males spoken to in this respect.
47. Clarification of the code required a further list of items of clothing to be set out for management consideration (page 209). That list included amongst other things “T-shirts” which could be worn by women subject to:
48. Only women, of course, could wear t-shirts because of the collar and tie obligation on men.
49. The applicant brought his application to the Employment Tribunal in time on 20 August 2002.
50. The SDA outlaws discrimination where an employer treats a man less favourably than a woman or vice versa and that difference in treatment is on the grounds of his sex (Section 1(1)(a) SDA).
51. It is for the Tribunal to decide what is less favourable treatment on the facts.
52. Simply because the applicant thinks he is being treated less favourably does not of itself establish that there has been less favourable treatment (Burrett but also note Khan).
53. The process required of us by the Act involves the Tribunal carrying out a comparison exercise and the comparators in this case are actual not hypothetical. In particular they are the five women work colleagues of the applicant, namely Anne Mitchell, Pat Wray, Julie Willis, Lisa Wilkins and Caroline Foster but generally all women employees of the respondents.
54. The comparison between the applicant and the comparators must be such that the relevant circumstances in the one case are the same, or not materially different, in the other (Section 5(3) SDA). The applicant must show that he has been treated less favourably and there must be a causative link between his treatment and his sex.
55. We - have to ask ourselves would the applicant have received the same treatment from the employer “but for” his sex. (James).
56. In order to interpret the statute in relation to dress codes an approach which requires Tribunals to look at the “overall situation” has been adopted. In other words, there should be a ‘swings and roundabouts’ approach as set out in Schmidt, Smith and Blaik. The most recent case to reach the EAT (Cootes) also followed that formula. There, the dress for males was a dark business suit, shirt and tie and for women a blue suit and green blouse.
57. The EAT approved the Tribunal finding that overall the requirements in relation to female dress did not amount to less favourable treatment of the appellant when compared with the male comparators.
58. The applicant here was not dismissed so we had to consider Section 6(2)(b) SDA and what is meant by “or subjecting him to any other detriment”. We noted that the word “detriment” is not defined in the SDA. The relevant principles from the case law in this area are contained in the judgments of Jeremiah and Porcelli.
59. We noted the changes relating to the burden of proof which came into force in October 2001. Once the applicant has succeeded in showing that he has been less favourably treated, the burden of proof is transferred to the respondents for them to show that the act was not discriminatory by explaining the disparity in treatment other than in relation to the sex of the comparator employee.
60. From that framework we established the following principles:
I There are three elements to the statutory tort. Less favourable treatment on the grounds of the applicant’s sex are the first two elements.
ii. The applicant must show less favourable treatment compared with that afforded to females.
iii. Different treatment is not necessarily less favourable treatment.
iv. There must be a causal link between the less favourable treatment and the applicant’s sex.
v. If the applicant has shown that there has been less favourable treatment and it was on the grounds of his sex, there is a third requirement of the statutory tort; he must have suffered a detriment which is not small or insignificant (de minimis — in other words the restriction imposed is so slight as not to be actionable).
vi. There is only a comparison exercise to be gone through when deciding if the applicant has been less favourably treated. (Section 1(1)). There need not be a comparator exercise when dealing with detriment.
vii. The question of detriment is merely whether an applicant has suffered a disadvantage.
61. Applying the facts to the legal framework and the principles set out above we came to the following decision.
62. We accepted that employers must be allowed to manage and enforce a uniform policy or dress code so that they achieve their goals of corporate identity and/or smartness etc. It is not for the Tribunal to interfere in such laudable aims.
63. If an organisation wishes to differentiate between “front line” and “back room” staff then that is also a matter for that organisation, though in this case we see no difficulty for the staff, whether front line or back room, being asked to dress to the same standard.
64. Therefore the aims of the company were not in issue, it was the way in which the respondents sought to implement them which became so.
65. Having established those general principles we turned to the issue of less favourable treatment. We asked ourselves whether there was a greater burden on men to comply with the dress code than women and we decided that there was.
66. We took the view that it is accepted by convention that a collar and tie is gender-specific.
67. The collar and tie were the only items of clothing which were mandatory. Although the dress code itself did not otherwise impose a higher standard of dress on men as opposed to women, the way in which it was implemented meant that, in practice, it did.
68. For example, a t-shirt could be worn by a woman but not by a man (page
69. We noted that there were items of clothing each sex could not wear but there were no items of clothing women had to wear.
70. If the words “for men the basic standard is to wear a collar and tie” had been omitted from the code, there would have been no issue with which the Tribunal had to deal and the dress code would have been unimpeachable.
71. We noted that both men and women would be disciplined if they flouted the dress code but the dress code as set up gave women more choices in relation to what they could wear. Men could fall foul of the dress code simply by not wearing a collar and tie. There was a disciplinary sanction if employees did not comply with the dress code.
72. If we were to turn the argument round and the only mandatory item of clothing had been for a woman to wear, say, a skirt (or another gender specific item of clothing) and she was disciplined for wearing some other item of clothing in place of a skirt, would that be deemed to be discriminatory against her on the grounds of her sex? We believe it would be.
73. Having taken that view we asked ourselves what test or tests need to be applied to put the matter beyond doubt.
75. We take the simpler James test first. Tribunals need not, according to this test, become involved in complicated issues of motive but simply apply the test.
76. We need not adopt a gender based criterion for comparing men and women when looking at the issue of the dress code.
77. Instead, we should ask the question, but for the applicant’s sex would he have been forced to wear a collar and tie?
78. The answer to that question must be ‘No’. Therefore, because he was forced to wear a collar and tie at work, the applicant was treated less favourably.
79. Does applying the “but for” test bring us into conflict with the “overall test”?
80. We realised that we had to be alive to the proposition that the test in Schmidt, Smith, Blaik and Cootes may be at odds with the underlying rationale in sex discrimination legislation which challenges traditional assumptions about the sexes and may reinforce conventional differences between the sexes. The overall test is simply a construct ~n the words of the statute in order for Tribunals to deal with the convention that there are differences in dress between men and women which society understands and, to some extent, expects.
81. This test asks us to take an even-handed approach when applying the conventional standards but at the same time accepting that there are differences in the way the sexes dress.
82. Applying this test to this case there are two points to be made. Firstly the respondents were not even-handed and secondly one can show that by comparing the vital elements of this case with those of Schmidt, Smith, Blaik and Cootes those cases can be distinguished.
83. The distinguishing features of this case are:
(a) The collar and tie were mandatory.
(b) A collar and tie is not gender neutral.
(c) There was prescription on men in this case but not women. There was no similar requirement placed upon women as there was upon men.
(d) There was a restriction on the freedom of choice in the dress code for men.
(e) There was no uniform requirement.
84. The relevant features in Schmidt, Smith, Blaik and Cootes are:-
(b) Smith was concerned with hair length not dress but the judgment in that case demands of employers that, although identical provision for the sexes does not have to be made, one particular item of the code may have the effect of treating one sex less favourably than the other and it was noted in Smith that a code can be challenged because it imposes a restriction on one’s freedom of choice.
(c) Burrett dealt with uniform rather than a dress code but the demand that female nurses had to wear caps was matched by the demand that male nurses had to wear jackets with epaulettes.
(d) In Blaik (we note here that Blaik was in fact decided in 1955 and only came back to the EAT in 1994 on a jurisdictional point) the wearing of a tie is balanced by the requirement of women to wear “a blouse or shirt in keeping with the uniform”.
(e) In Cootes the comparison was between a dark business suit, shirt and tie for men and a blue suit and green blouse for women. In other words there was equal prescription for both parties.
85. When applying therefore the two tests and noting the distinguishing features between all the cases referred to above, there has been less favourable treatment of this applicant when compared with his female colleagues.
86. We then considered whether the less favourable treatment was because of the applicant’s sex.
87. We found that the requirement to wear a collar and tie is gender based. There were no items of clothing that were imposed on women working at the same establishment.
88. The less favourable treatment was on -the grounds of the applicant’s sex and it follows that the applicant has been able to overcome the first two hurdles of the statutory tort. We now turn to the third hurdle. Was there a detriment or not?
89. The applicant certainly thought that he had been subjected to a detriment. This could be enough on a reading of Khan.
90. We recognise, however, that a person may feel that he is being less favourably treated yet not suffer a detriment. Their Lordships’ decision in Khan suggests that because “detriment” has a wide meaning, this area can better be dealt with when looking at remedy, especially in relation to the amount of compensation for injury to feelings.
91. However, we felt that we were constrained to consider the issue of detriment at the liability stage because we believe it is this element that completes the statutory tort (Cootes).
92. We considered Brightman LJ's view (referred to in Khan) that:-
“A detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment”
Then Brandon U in the same case tells us that detriment means:-
“putting under a disadvantage”.
93. We- identified two disadvantages.
94. Firstly, that the applicant’s freedom of expression was fettered, that he had to wear something that he did not want to wear, that he felt a sense of injustice that he had to wear prescriptive clothing but women did not, that he had to change his habits of dress after June 2002 when the application of the dress code did not demand this change in women’s dress (we accept there is no comparator issue here) and in any event he worked in the back room with no contact with the public so that what he wore was irrelevant to the respondent’s aim to present a smart and professional face to the public and the service users.
95. Secondly, he was disciplined.
96. We also felt constrained to decide whether the detriment was de minimis or not. If the detriment was minor the applicant might still fall at this last fence.
97. Even if the only detriment was those matters referred to in paragraph 94 above, we feel that the applicant was put at a disadvantage.
98. There was no change in his terms and conditions of employment (indeed that was agreed between the parties) by the imposition of a dress code but the way someone wishes to dress is important in the way that person wishes to express him or herself.
99. We accepted that it was only during working hours that the applicant had to dress in accordance with the code and that the respondents could demand that their staff conform to a standard but the issues identified in para. 94 above did affect the applicant. (see Brightman LJ’s quote para. 92 above).
100. We are therefore of the view that the applicant did suffer a disadvantage by the insistence of the employers that he had to wear a collar and tie.
101. However, the second disadvantage needs to be dealt with.
102. The fact that the applicant was disciplined for not wearing a collar and tie is clearly a detriment which has a causal link with the less favourable treatment suffered because of this applicant’s sex.
103. Both women and men would be disciplined for not keeping to the standard of dress required which had, in the case of women, no discriminatory element to
104. An example in relation to men is illustrative of the point to be made. If men wore jeans with a collar and tie they would have been disciplined. But that disciplining would be gender neutral and therefore acceptable. The applicant’s situation was not gender neutral.
105. The question of course could be asked: Isn’t the wearing or not wearing of a collar and tie a trivial issue and therefore de minimis? The respondents themselves did not think so because they were prepared to discipline employees for flouting this particular part of their dress code and ultimately to dismiss a recalcitrant employee, In’ the context of this case we did not think the issue was de minimis.
106. Finally, we considered the Human Rights aspects of this claim.
107. It was accepted by both parties that there was no free-standing Human Rights claim.
108. All that is required of us when considering the issues before us was to have those Human Rights principles ringing in our ears. We came to our decision by interpreting the SDA in a way compatible with the Human Rights legislation. We did however, in this context, consider Kara and BS v UK. We accept there can be different rules for men and women when it comes to clothing (Kara) and that although personal clothing may be a "private and family matter” (BS v UK) a dress code can be imposed by an employer. However we do not base our decision on either of the judgements of the Commission.
109. For all the above reasons we felt that all the elements of sex discrimination within the meaning of the SDA had been made out. The applicant proved on the balance of probabilities that he had been less favourably treated. The respondents needed to explain the disparity in treatment other than in relation to-the sex of the applicant and the comparators. Why were the respondents so insistent on men wearing a collar and tie? The answer seems to be that it was an attempt to bring men’s dress up to a certain standard. Unfortunately for the respondents they have not been so demanding of their female employees and consequently have not discharged the burden upon them by explaining satisfactorily -the difference in treatment. It follows that the applicant must therefore succeed in his claim.
Remedy & Directions
110. From what we heard from the parties’ representatives during the course of the hearing the issue of remedy may not be so contentious as the issue of liability. It may be that no hearing is needed.
111. However, in order to bring this matter to a close we make the following Directions.
112. We direct that the parties’ representatives submit and exchange their submissions on the issue of remedy by no later than 28 March 2003 and to submit and exchange their respective replies thereto by no later than 11 April 2003.
113. Either party may apply to the Tribunal to be heard on the issue of remedy or speak to those written submissions.
114. The Tribunal will meet in Chambers in order to come to a decision on remedy on a date to be fixed.