In Smith v Safeway plc (16 February 1996) EOR69A, the Court of Appeal holds that an appearance code which applies a standard of what is conventional applies an even-handed approach between men and women, and not one which is sex discriminatory.
This is an important test case on when dress and appearance standards will be regarded as sex discriminatory.
Nicholas Smith was employed as a delicatessen assistant from August 1988 until April 1992. He was dismissed because his ponytail grew too long to be kept under his hat. This was contrary to Safeway's rule concerning appearance for male delicatessen staff which specified: "Tidy hair not below shirt collar length. No unconventional hair styles or colouring." The comparable rule for female staff referred to: "Tidy hair…Shoulder length hair must be clipped back. No unconventional hair styles or colouring." It was accepted that no questions relating to standards of hygiene arose in the case of Mr Smith.
An industrial tribunal rejected Mr Smith's complaint of sex discrimination. Noting that the employers were seeking to promote a "conventional" image and that they were entitled to have a dress and appearance code, the tribunal concluded that "it was not discriminatory to have different lengths of hair for men and women." In so finding, the tribunal purported to rely upon Schmidt v Austicks Bookshop Ltd  IRLR 360, in which the EAT said that where there were rules restricting wearing apparel and governing appearance which applied to both men and women, "although obviously, women and men being different, the rules in the two cases were not the same," there was no discrimination since "the employers treated both female and male staff alike in that both sexes were restricted in the choice of clothing for wear whilst at work." The industrial tribunal in this case accepted the employers' argument that the treatment accorded to Mr Smith was not "less favourable" than the treatment which would have been accorded to a woman, since the law permits different rules to be applied to men and women, provided they enforce a common standard of smartness if read as a whole.
The EAT by a majority decision (Pill J dissenting) held that it was contrary to the Sex Discrimination Act 1975 to make a distinction as to the length of hair permitted men and women. The lay members took the view that the employers' rules were capable of being applied to both men and women so as to take account of convention, without placing a restriction on hair length for men only. The lay members purported to distinguish the decision in Schmidt on grounds that a restriction on hair length, as opposed to clothing, extended beyond working hours. Mr Justice Pill thought that the case fell within the principle laid down by Schmidt that the law permits different rules to be applied to men and women, provided they enforce a common standard of smartness if read as a whole. He said: "What is conventional and what is out of the way for men will often be different from what is conventional and out of the way for women. . . Provided requirements for men and women can reasonably be related to current perceptions of what is a conventional appearance for men and for women, the requirements do not treat one sex less favourably than the other. The sexes are treated differently but equally by the standard of what is conventional.
A man's right to wear a ponytail at work may not have been at the forefront of Parliament's mind when the Sex Discrimination Act 1975 was enacted. However, the issues raised by this case touch on fundamental discrimination law principles and there can be no doubt that the reasoning used by the Court of Appeal to arrive at the conclusion that the employer was not discriminating on grounds of sex by adopting different hair length rules for men and women is a major setback for the cause of equal opportunities.
'There is an important distinction," according to Lord Justice Phillips, "between discrimination between the sexes and discrimination against one or other of the sexes.. . If discrimination is to be established, it is necessary to show, not merely that the sexes are treated differently, but that the treatment accorded to one is less favourable than the treatment accorded to the other."
This reasoning is flawed, both as to its premise and in its application to this case. The conceptual distinction between discrimination against a sex and discrimination between the sexes is not an "important" one at all. The fundamental principle, as the European Court of Justice reminded us in the GillespieEOR66A decision , is that "discrimination involves the application of different rules to comparable situations..
Lord Justice Phillips notes that the Sex Discrimination Act defines discrimination in terms of being treated less favourably and claims that "this is plainly the meaning of discrimination in Directive 76/207." This flies in the face of the language of the Directive. Rules relating to dress and appearance are part of an employee's working conditions. Article 5(1) of the Equal Treatment Directive says unequivocally that: "Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex." The Court of Appeal should have construed the UK Act so as to accord with this clear requirement.
The reason the Sex Discrimination Act refers to "less favourable" rather than "different" treatment is not to draw a fundamental distinction in principle, but rather to preclude frivolous cases, where no detriment has been suffered. In any event, in R v Birmingham City Council ex parte Equal Opportunities Commission EOR25A, the House of Lords ruled that in order to establish that there was less favourable treatment, it was enough to show that girls were deprived of a choice which was valued by them. As the majority of the EAT held in this case, rules restricting only men's hair length are "self-evidently" less favourable treatment. They do not lose this character merely because they form part of a code which also restricts women's choices in different ways.
The Court of Appeal's convoluted reasoning appears designed to avoid the conclusion that an employer is acting unlawfully by enforcing "conventional" standards. Patrick Elias QC evidently pushed the right button when he warned their Lordships that requiring identical provisions for men and women "would have an unfavourable impact on that sex being compelled to appear in an unconventional mode." Lord Justice Phillips asked rhetorically: "Can there be any doubt that a code which required all employees to have 18 inch hair, earrings and lipstick would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards?"
Leaving aside the absurdity of the example, the answer to the question is that men would be treated unfavourably by such a code. The flaw in the Court of Appeal's reasoning is that it does not follow that because it would be discriminatory to apply the same standard, it cannot be discriminatory to apply a different but "even-handed" standard based on that which is conventional.
The right way of analysing this case is to start with the basic proposition that different appearance rules for men and women, like any other sex-based difference, are directly discriminatory, subject to de minimis differences and perhaps differences directly connected with anatomical distinctions. The hypothetical employer who requires men (and women) to wear lipstick would also be acting unlawfully because the true ground or motive for such a policy could only be to treat a man unfavourably. That the rule was applied to women as well would not be an answer because it would not be relevant to the ground for the man's treatment.
Additionally, such a rule clearly would be indirectly sex discriminatory in that it would be imposing a requirement with which the proportion of men who could comply "in practice" would be considerably less than the proportion of women.
It is true that the Court of Appeal leaves open the possibility of challenging an appearance code on the ground that, when viewed as a whole, it operates unfavourably towards the applicant on grounds of his or her sex, for example, because of the impact on comfort or health, or the degree of restriction imposed on the freedom to govern one s own appearance. According to Lord Justice Phillips, in such a case, the tribunal would have to consider interrelated questions of whether the restriction, such as on the length of hair being worn by men, "could properly be justified on the ground that it represented a requirement of conventional appearance, and whether the restriction imposed by that item of the appearance code, when considered in the context of the code as a whole, resulted in men being treated less favourably than women.
This reifies what is "conventional", instead of placing it under scrutiny. An employer has every right to adopt dress codes requiring employees to present a clean and neat appearance. But different "conventions" as to how men and women should dress are themselves tainted by sex-based stereotypes as to what is acceptable for men and women. They are no more valid than different "conventions" as to how men and women should act. Indeed, a person's mode of dress is part of the way they act. It should be no more lawful for an employer to treat a man unfavourably because of a fashion statement than it would be for an employer to treat a woman unfavourably because her speech did not conform to a stereotype that women should be less assertive than men.
Phillips J: "I can accept that one of the objects of the prohibition of sex discrimination was to relieve the sexes from unequal treatment resulting from conventional attitudes, but I do not believe that this renders discriminatory an appearance code which applies a standard of what is conventional. On the contrary, I am inclined to think that such a code is likely to operate unfavourably with regard to one or other of the sexes unless it applies such a standard. An appearance code may have effects which go beyond appearance - comfort and health are examples - but the most obvious and immediate effect that it has, axiomatically, is on appearance. The primary reason why an individual is likely to object to an appearance code is because of the way it makes that individual appear to others, or indeed in the mirror. As Mr Elias has pointed out, a code which made identical provisions for men and women, but which resulted in one or other having an unconventional appearance, would have an unfavourable impact on that sex being compelled to appear in an unconventional mode. Can there be any doubt that a code which required all employees to have 18-inch hair, earrings and lipstick would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards? I put that question to Mr Bibby, and he accepted that such a requirement would operate unfavourably towards men. The reason for that is that the appropriate criterion to be applied when considering that question is: what is the conventional standard of appearance? Indeed, it seemed to me that Mr Bibby implicitly conceded that when he submitted to us that what is discrimination can change as society changes. A code which applies conventional standards is one which, so far as the criterion of appearance is concerned, applies an even-handed approach between men and women, and not one which is discriminatory.
The final, and it seems to me the most important, element of the approach in Schmidt is that, looking at the code as a whole, neither sex must he treated less favourably as a result of its enforcement. This element of the principle is plainly correct. So it follows that I consider the approach recommended by Phillips J in Schmidt to be as sound in law as it was when he enunciated it."