Dress Code in the Workplace

Most workplaces in Australia have some kind of dress code, whether through a mandatory uniform or through basic workwear guidelines that stipulate what is appropriate for the specific environment. An employer can generally include any specification in a dress code as long as it does not infringe on a worker’s protected rights. Some dress codes even mandate acceptable standards of physical appearance for their employees, relating to the visibility of tattoos, appropriate styles of hair and style of makeup. This article examines the legality of dress codes in the workplace.

Dress code policy

Many employers have written dress codes for employees. Any such dress code policy must be communicated to all employees and applied consistently and not implemented retrospectively.

Broadly speaking, the dress codes for most workplaces can be divided into three categories:

1. Formal business wear: suit and tie for men, and suit or business style dress for women
2. Smart casual: sport jacket with trousers or dressy jeans for men, smart slacks, skirts or dark jeans with a dressier or collared top for women or
3. Casual: relaxed but work-appropriate attire.

In each category, the employer may also be specific in restricting certain attire, such as prohibiting spaghetti straps, shorts, pajamas, sweatpants or workout gear.

Generally speaking, an employer has the right to set a dress code which is appropriate to the operational needs of each role, and an employee is obliged to follow this code as part of an employer’s lawful and reasonable directions. Common law establishes that employers can expect a level of decorum in their employees’ presentation, from correct uniform to other professional attire such as suit and tie.

However, any dress code policy needs to be proportional to the circumstances. For instance, a policy that requires employees to cover their tattoos may be appropriate for front-line workers but may be seen as unreasonable for back-of-house workers. Employers also must not create dress codes that infringe on an employee’s personal protected rights, or violate anti-discrimination statutes or equal employment opportunity policies. In addition, employers need to tread lightly when it comes to setting different standards for men and women, or making a gender specific requirement. If an employer requires female workers to wear makeup, for instance, then there should be a commensurate requirement for the standards of men’s physical presentation. Otherwise, the net result may be that female workers are subject to an additional hardship (ie the additional time and expense of wearing makeup) simply due to their gender, which would be a breach of anti-discrimination law.  

Personal protective equipment

Anything that a worker wears or uses to stay safe and healthy is known as personal protective equipment (PPE). Generally, PPE is provided by the employer or labour hire company, and workers must wear the PPE according to their employer’s instructions. For instance, employers can require staff to wear clothing items that protect them adequately, such as enclosed shoes on a worksite.

Unfair dismissal

The Fair Work Commission has made numerous determinations on the subject of dress code non-compliance. In Felton v BHP Billiton Pty Ltd [2015] Mr Felton, a truck driver, was working for BHP when the company implemented a clean-shaven policy so all employees could wear correctly-fitted respirators when exposed to harmful fumes. This policy was directly related to BHP’s obligation under state law to protect employees’ health and safety. While the policy was implemented in 2010, it was only after the company received advice about carcinogens in the mine in 2014 that the company started strictly applying the clean-shaven policy to workers.

Before the crackdown, 70% of effected mine workers had facial hair, and Mr Felton was the only employee who refused the directive to shave his moustache and goatee. Afterwards, Mr Felton received a written warning for a serious breach of his employment obligations and faced termination. He reiterated his refusal to shave, saying that his facial hair was part of his identity. Mr Felton was dismissed and subsequently brought an unfair dismissal claim to the Fair Work Commission. He claimed that his dismissal was harsh because the clean-shaven policy was not valid and because he had offered to purchase his own respirator that would allow him to keep his facial hair. The Fair Work Commission determined that in the circumstances the clean-shaven policy was reasonable given the employer’s work health and safety obligations. Therefore, Mr Felton’s dismissal was fair.

Conversely, the Fair Work Commission found for the plaintiff in Taleski v Virgin Australia International Airlines Pty Ltd[2013]. In this unfair dismissal case, a Virgin flight attendant was terminated for refusing to cut his hair. The airline’s “Look Book” dress code stipulated that male employees should have tidy hair no longer than 4cm in length. Mr Taleski refused to comply with this part of the dress code on the grounds that he suffered from a psychosocial condition called Body Dysmorphic Disorder, a claim supported by medical certificates. He was removed from his flight duties but after a successful conciliation at the Australian Human Rights Commission, returned to work. As part of the conciliation, he agreed to wear a wig while on duty, expecting that this was a permanent employment allowance. His employer, however, decide that it was only a temporary allowance and eventually started pressuring Mr Taleski to comply with the dress code. When he refused, Virgin terminated his employment on the grounds that he refused to follow reasonable management direction.

Commissioner Anna Lee Cribb determined that his dismissal was harsh, unjust and unreasonable. Mr Taleski had provided his employer with proof of how his illness impacted his ability to follow the dress code, and showed willingness to comply as far as possible with the Look Book through alternate options. The Commissioner ordered Virgin to reinstate him to his former position.

Employers can implement dress codes, but there are limitations as to what the employer can expect from their employees. Before introducing a dress code in the workplace, contact Go To Court Lawyers on 1300 636 846 for advice.