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Some readers will know that for over 12 years I was a professional magician and stage illusionist, a rather different profession than that of a barrister or advocate.
I recently visited the Magic Circle’s headquarters in London to catch up with colleagues and the latest magic gossip.
I have been a member of the Magic Circle since the age of 18 but, because the Circle's social meetings are on Mondays in central London it makes visiting difficult for someone overseas and so I don't attend often. Before turning up, I checked the dress code and was told it was smart casual but no short sleeves. That requirement caused me to think about dress codes in the workplace and perhaps give readers an insight into this tricky topic.
A question I get asked quite frequently by employers is whether they can dictate a dress code for their employees. Many employers are generally concerned about the risk of facing legal action for requiring staff to wear certain clothing or maintain a certain appearance. Clients have told me they think employment law is a 'minefield' and always fearful of some complaint or problem. While I can understand why some may see the law that way it's actually relatively simple although I admit there are some grey areas. The foundation and underlying principle is that you cannot, as an employer, discriminate against an employee in respect of a 'protected characteristic'. What is and what is not a protected characteristic is set out in the law. Currently the characteristics are age, disability, gender reassignment, pregnancy and maternity, race, sex, and sexual orientation.
So, let's dive straight in with some examples.
Can an employer dictate hairstyles or have rules about appearance of hair? The answer is probably yes. However, in setting a 'hair policy' there must be no discrimination. Thus, in the UK there have been cases in which issues have arisen over 'afro' hairstyles where employers have required staff to shorten or change the style of the hair. That is discriminatory by reason of race. That is not permitted. What about facial piercings? Can you dictate they must be removed? Yes. An employer can have a policy that there should be no facial piercings provided it is applied across the board and there is no discrimination.
Can an employer dictate the type of clothes that are worn? Yes. There is nothing to stop an employer having a dress code but again in must not be discriminatory.
While I cannot provide advice that 'fits all' there are some basic steps an employer can take when putting in place policies about appearance. First, the policy should be written so it is clear to all employees. Second, there should be reasons for the policies and again, it would be useful if these are explained. For instance, an employer may have a dress code requirement for public-facing employees which is different than non public-facing employees. While this is discriminatory, it is not discrimination in respect of a protected characteristic. A bank may allow back office staff to wear shorts, t-shirts and flip-flops but not permit that for employees out 'on the floor'. An employer may also have rules about facial hair but caution has to be exercised: is the employee who is growing a beard doing so for religious reasons or for health reasons? Take note: there are conditions which cause severe reactions to shaving and there are religious beliefs and practices in respect of beards. Tattoos are another favourite topic. Again, a policy can be imposed as long as it does not discriminate. An employer may prefer to have a basic policy which can be adapted if necessary. This must be right because if an employer allows visible tattoos he or she must be able to require they be covered if they are offensive by reason of what they portray either in pictures or words.
Let me return to the Magic Circle...
Many years ago, the Magic Circle found itself in the centre of a controversy which (oddly) none of its members had – despite their expertise – predicted. It was caused by a magician called Fay Presto. At the time the Magic Circle was a male only society. You could not join if you were a woman. Fay Presto was a member at the time but some nine months or so after joining the council approached Fay and said that the council had reason to believe Fay was a woman.
When I was at the Circle the other week I was chatting to Fay and I know her views concerning sexual identification are complicated and so I do not want to delve into detail here but, in short, as the Circle did not permit women at the time Fay's membership was revoked. Time has moved on, the Circle permits women members now and so too has the law moved on: employers must accept that people have freewill in how they identify themselves and must not discriminate against them.
About six years ago there was a famous case in the UK between a female employee, Nicola Thorp, and her employer concerning her shoes. Nicola arrived on her first day in a city financial company dressed smartly and wearing flat shoes. She was told she needed to buy shoes with a heel between two and four inches high or go home. She went home. Following this case there was a petition and the legislature was pressed to make changes so that it was illegal to require women to wear high heeled shoes. While it was understandable why people were pressing for such a law it was in fact, in my opinion, unnecessary because the law which existed was enough: an employer cannot discriminate between sexes. Thus, to force a woman to wear such shoes and not men then there is discrimination.
Pictured: Advocate Olaf Blakeley.
It would not be discriminatory if the employer can show the requirement was a proportionate one to achieve a legitimate aim. If the requirement is purely aesthetic then it will be extremely difficult for the employer to prove that. So, employers must be careful when dictating how employees dress if they are going to choose to distinguish between male and female.
So, what of the Magic Circle insisting members to wear long sleeves? Is that a proportionate means of achieving a legitimate aim? Of course it is and I kick myself for not realising it earlier as we all know why magicians need long sleeves.
This article first appeared in the July edition of Connect Magazine, which you can read in full below...
