Dress codes


Department for Work and Pensions v Thompson [2004] IRLR 348



The Employment Appeal Tribunal allowed an appeal against a tribunal's decision that employers discriminated against an administrative assistant by requiring him to wear a collar and tie at work. The tribunal was wrong to take the view that if members of one sex are required to wear clothing of a particular kind, and members of the other sex are not, the former are treated less favourably than the latter. The right question to ask was whether, in the context of an over-arching requirement for staff to dress in a professional way, the level of smartness which the employer required, 'applying contemporary standards of conventional dresswear', could only be achieved for men by requiring them to wear a collar and tie.


As the editor of the IRLR points out: 'This emphasis on overall even-handedness does have the advantage of avoiding item-by-item clothing comparisons. However, it raises the intriguing issue of whether members of employment tribunals should be regarded as the appropriate arbiters of smart dresswear'.



Illegality



Colen & Another v Cebrian (UK) Ltd [2004] IRLR 210



The Court of Appeal ruled that, where illegality is alleged, the burden of proof is on the party making the allegation to show that the contract was entered into with the object of committing an illegal act, or was performed with that objective. An analysis needs to be done as to what the parties' intentions were from time to time. If the contract was unlawful at its formation, or if there was an intention to perform the contract unlawfully as at the date of the contract, then the contract will be unenforceable.


If, at the date of the contract, it was perfectly lawful and it was intended to perform it lawfully, the effect of some illegal act does not automatically render the contract unenforceable. If the person seeking to enforce the contract has to rely on his illegal action in order to succeed, the court will not assist him. But if he does not have to do so, the question is whether the method of performance chosen, and the degree of participation in that illegal performance, makes the contract illegal.



By Martin Edwards, Mace & Jones, Liverpool