Convention is the enemy of equality. Convention dictated that women were disenfranchised, denied employment and career opportunities, advancement and equal pay for very many years.
Convention long supported the “workplace banter” defence to what was patently sex discrimination, harassment or victimisation. Convention even denied female membership of the Royal and Ancient Golf Club of St. Andrews for 260 years until that great institution recently saw the light and its membership voted overwhelmingly to admit female members with immediate effect and - coincidentally and simultaneously - appeased one of the sport’s most important sponsors, HSBC. Happily, most of these conventions have been eradicated to a greater or lesser degree by enlightenment – so three cheers for that. However, there remains at least one prominent example of convention which continues to cause sensitive workplace issues – fashion.
Perhaps by way of an indication as to how far equality has come, case law throws up almost as many male as female complainants about the enforcement of dress codes in the workplace.
I was reminded of how the topic remains a bone of contention by the decision of the conciliation service ACAS to publish guidance for employers about what it considers to be a proportionate approach to what people wear to work. Females have, of course, successfully complained about having to wear nylon overalls (while male counterparts wore lounge suits) or the substitution of previous loose-fitting attire with high hemlines and plunging necklines.
Men have regularly contested - although, it must be said, not always successfully - their employer’s refusal to allow them to sport earrings, have long hair or pony-tails or the insistence that they wear neck-ties.
That relative lack of male success has prompted suggestions of double standards, a charge which has consistently been met by court’s and tribunal’s reliance on “convention”.
Both the EHRC Employment Code and the Equality Act provide that so long as restrictions on the choice of dress or appearance are imposed to an equal degree on males and females, those restrictions need not be identical.
It's a view also shared by the new ACAS advisory note.
Therefore, an employer imposing a “smart dress and appearance” requirement for employees will not be acting unlawfully provided the same standard is applied to both sexes.
The problem with that is that it only works if a conventional stereotype is accepted as to what males and females ought to be wearing to look “smart”. Little wonder then that different divisions of the fashion police continue to disagree about jurisdictional boundaries.
Oh, and we haven’t even touched on the wearing of clothing with a religious basis, symbols of religious faith, gender reassignment………
