Employees must be smart about dress codes to avoid suits

THE recent press received by a clothing store retailer that required its staff to wear tight-fitting t-shirts with a slogan "Stop pretending you don’t want me" raises important issues about what employers can and cannot require their employees to wear.

A number of employees claimed the t-shirts had provoked offensive comments from many customers – particularly from male customers in relation to female employees – which they considered constituted sexual harassment.

The employer had allegedly made it clear that employees would not be permitted to work in the stores unless they wore the t-shirts.

As the law stands an employer is entitled to implement an appropriate workplace dress code.

The dress code should not, however, contravene anti discrimination or equal opportunity laws.

Also, under occupational health and safety legislation employers have a duty to provide a workplace that is healthy and safe, which includes being harassment free.

In the "t-shirt situation" it is arguable that requiring employees to wear t-shirts with a provocative message could expose employees to sexual harassment by customers and other persons and could cause the employer to be criticised for creating an unpleasant and hostile working environment for employees.

In response to critical public comment and, to a lesser extent, its own employees, the clothing retailer ended up recalling the t-shirts.

Therefore, it was never actually tested whether the employer’s conduct in fact amounted to sexual harassment, was otherwise discriminatory or created an unhealthy or unsafe workplace.

However, to avoid unwelcome publicity and possible liability, in formulating a workplace dress code employers should ensure that any such dress code:

p Is related to the nature of the job;

p Does not discriminate between male and female employees;

p Allows observance of religious or cultural beliefs where possible;

p Is consistent with the occupational health and safety requirements of the workplace;

p Is not unreasonable in the circumstances or would expose employees to the risk of harassment; and

p Is applied consistently to all employees.

Katherine Eyres, solicitor

9288 6687

Ian Curlewis, partner

9288 6756