Can you break the dress code?

The Government Equalities Office has issued new guidelines for employers on what they can and can’t insist that staff wear to work.  However, discrimination is not the only issue that an employer should consider when it decides to tell employees what to wear.

National Minimum Wage

One of the most common reasons why companies inadvertently fail to pay salaries in line with the National Minimum Wage (NMW) rates is the requirement for employees to wear uniforms for which they need to pay.

Even well-known High Street names have fallen foul of the rules with one company being found to have underpaid a total of £133,212 to 2,630 employees due to their requirement that all staff wear black jeans or a black skirt with the company’s custom t-shirt. What hadn’t been realised was that this was considered to be the same as asking the employees to buy a uniform.

The key point was that it was irrelevant whether the ‘uniform’ could be used for the worker’s own benefit. If the employee decided to wear their black jeans in their own time it made no difference. The employer was still making it a requirement to wear a specific item of clothing for the role.

The cost of that item would need to be deducted from the worker’s wages and if that left the worker with less than the NMW the employer was in breach.

Minimising the risk

A carefully worded flexible dress and appearance policy will not necessarily be regarded as introducing a requirement to wear a uniform. It will depend on how prescriptive it is. Do employees have a genuine choice of what to wear for work? A policy that simply requires that staff should dress appropriately to ensure they present a professional image to customers gives choices. A uniform rule that all staff must wear black trousers and shoes with a white shirt gives the employees no choice.

It should also be considered whether a uniform policy is necessary for all employees as some might never even meet customers.

If there is really a need for a uniform, can the employees be given an allowance to meet the costs, or can the uniform be provided free of charge?

Penalties

Aside from naming and shaming and the harm that this may do to their public image, the consequences for employers who fail to pay NMW can be financially severe. Payment of the shortfall in wages could be accompanied with an order to pay a further financial penalty of up to 200% of the unpaid wages, capped at £20,000 per worker directly to the Secretary of State for Business, Innovation & Skills.

It is also possible that claims could be brought by the individual workers in the Employment Tribunal or County Court in respect of unlawful deductions from wages and/or breach of contract.