Gender discrimination and grooming codes in the labour (super)market

Published date01 September 1995
AuthorIvan Hare
DOI10.1177/135822919500100205
Date01 September 1995
Subject MatterCase Notes
International
Journal
of
Discrimination
and
the
Law,
1995,
Vol.
1,
pp. 179-189
1358-2291/95
$10
©
1995
A B
Academic
Publishers.
Printed
in
Great
Britain
CASE NOTES
Gender
discrimination
and
grooming codes
in
the
labour
(super)market: Smith v Safeway Pic [1995] I.R.L.R. 132.
That a man should
be
able to obtain a legal remedy for a dismissal
caused by the length
of
his hair may appear inherently trivial and
some way from the original rationale for the enactment
of
the Sex
Discrimination Act 1975. Yet in Smith v. Safeway Pic [1995] , a
majority
of
the Employment Appeal Tribunal (E.A.T.) held that to
impose a limit
on
the hair length
of
male employees which did not
apply equally to their female counterparts was a violation
of
the Act.
Mr. Smith wore his hair in a pony tail and worked on the delicates-
sen counter in one
of
the respondent supermarket's chain
of
stores.
The company's grooming code specified that men should have '[t]idy
hair not below shirt collar length'; the comparable rule for women
referred to '[t]idy hair
...
[s]houlder-length hair must
be
clipped
back'. It was accepted by both sides that the rule for men was not
required in the interests
of
hygiene but rather in order to present a
professional image
of
the workforce.
To
this end a further rule
applied to both sexes prohibiting any 'unconventional hair styles
or
colouring'.
Employer grooming codes may cover a variety
of
matters in
addition to proscriptions
of
hair length
or
style including the wearing
of
make-up, jewellery
or
tattoos, maximum weight rules and clothing
requirements. The latter may be negative (for example, prohibiting
women from wearing trousers)
or
positive (such as requiring some
employees to wear a uniform). The leading English case
on
the sub-
ject is Schmidt v. Austicks Bookshops
Ltd
[1978] I.C.R. 85, which
decided that
it
was not sex discrimination to dismiss Ms Schmidt for
her refusal to comply with the workplace rule that female employees
should not wear trousers when in contact with customers. The
reasons for this decision and the manner in which it was circum-
vented by the tribunal in Smith will
be
dealt with below but, first,
something must be said about the structure
of
the Sex Discrimination
Act. The Act is predicated
on
the distinction between two different
forms
of
prohibited action: direct and indirect discrimination. The
conundrum revealed by the present and similar cases is that they do
not fit comfortably into either classification. The facts
of
Smith do
not reveal direct discrimination as traditionally conceived because the

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