Department for Work and Pensions v. Thompson

Factual and Procedural Background

Plaintiff is an administrative assistant employed by Company A, an agency responsible for providing employment and social security services across Great Britain. Plaintiff’s role does not involve direct contact with the public. Company A introduced a dress code requiring male employees to wear a collar and tie, whereas female employees were only required to dress "appropriately and to a similar standard" without a specific mandate for particular items of clothing.

Plaintiff objected to the mandatory collar and tie requirement, claiming it constituted unlawful sex discrimination. An Employment Tribunal found in Plaintiff’s favour, ruling that the dress code was discriminatory against men. Company A has appealed this decision. The appeal is significant due to the large number of similar cases pending, some thousands of which are awaiting the outcome of this appeal. The court focuses on the facts of Plaintiff’s case to determine the legal issues.

Legal Issues Presented

1. Whether the requirement for male employees to wear a collar and tie constitutes less favourable treatment of men compared to female employees under the Sex Discrimination Act 1975.
2. Whether such treatment, if less favourable, is on the ground of sex.
3. Whether Plaintiff was subjected to a detriment as a result of the dress code.
4. How to properly apply the legal principles concerning direct sex discrimination in the context of differing dress code requirements for men and women.

Arguments of the Parties

Appellant's Arguments

• The Employment Tribunal misapplied the "but for" test from James v. Eastleigh Borough Council, conflating the test for causation with the test for less favourable treatment.
• The Employment Tribunal failed to consider the dress code as a whole, as required by the principles established in Smith v. Safeway Plc, which mandates a "package approach" rather than an item-by-item analysis.
• The dress code’s overarching requirement for all staff to dress in a professional and businesslike manner means that differences in specific clothing requirements do not necessarily amount to less favourable treatment.
• The Employment Tribunal incorrectly concluded that requiring men to wear a collar and tie imposed a higher standard of dress and that the only way to eliminate discrimination was to impose similar requirements on women.

Appellee's Arguments

• Although conceding the Employment Tribunal wrongly applied the "but for" test, Plaintiff argued that the Safeway case should be reconsidered in light of James.
• On the facts found by the Employment Tribunal, Plaintiff contended that the only proper conclusion was that men were treated less favourably than women because men were required to wear a collar and tie while women were not subject to any specific mandatory clothing item.
• Plaintiff emphasized that the lack of flexibility for men’s dress constituted less favourable treatment in comparison to women’s broader clothing options.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Schmidt v. Austicks Bookshops Ltd [1978] ICR 85	Assessment of less favourable treatment in dress codes; restrictions must be comparable to establish discrimination.	Used to illustrate that differing dress code requirements for men and women are not automatically less favourable treatment if both sexes face restrictions appropriate to their sex.
Smith v. Safeway Plc [1996] ICR 868	Established a "package approach" to appearance codes and held that conventional standards of appearance are not discriminatory.	Emphasized that dress codes must be assessed as a whole, not item-by-item, and that requiring conventional appearance standards does not constitute discrimination.
James v. Eastleigh Borough Council [1990] 2 AC 751	Clarified the application of the "but for" test in direct sex discrimination cases.	Clarified that the "but for" test applies only after less favourable treatment is established, and that motivation is irrelevant if less favourable treatment is on the ground of sex.
Blaik v. The Post Office [1994] IRLR 280	Noted but not substantively applied; dealt with jurisdictional issues.	Referenced for completeness; no substantive application in this case.
Burrett v. West Birmingham Health Authority [1994] IRLR 7	Considered whether differences in uniforms constituted less favourable treatment.	Supported the principle that differing uniform requirements do not necessarily amount to less favourable treatment if not demeaning or discriminatory.
Cootes v. John Lewis Plc (EAT/1414/00)	Examined whether dress requirements led to less favourable treatment based on appearance and status.	Found no less favourable treatment despite different clothing requirements, focusing on overall effect rather than specific items.

Court's Reasoning and Analysis

The court analyzed the Employment Tribunal’s findings and identified several errors in the application of legal principles. It held that the Employment Tribunal misunderstood the role of the "but for" test from James v. Eastleigh, applying it improperly to determine less favourable treatment rather than causation.

The court emphasized that the correct approach, as established in Smith v. Safeway, requires assessing the dress code as a whole rather than focusing on individual items of clothing. The overarching requirement for all staff to dress professionally and businesslike meant that differences in dress code specifics did not automatically equate to less favourable treatment of men.

The court found that the Employment Tribunal failed to address whether the required level of smartness for men could only be achieved by wearing a collar and tie, a critical factual question it must resolve. The Tribunal’s comparison with other cases was flawed because it misunderstood the issues those cases addressed and wrongly assumed that imposing particular clothing requirements on one sex necessarily results in discrimination.

Ultimately, the court concluded that the Employment Tribunal did not properly apply the statutory test for less favourable treatment and that the matter must be reconsidered with proper focus on whether the dress code’s requirements for men were necessary to achieve the professional standard expected of all staff.

Holding and Implications

The court ALLOWED the appeal and set aside the Employment Tribunal’s decision that the dress code was discriminatory.

The case is remitted to a differently constituted Employment Tribunal for reconsideration of whether the collar and tie requirement for men is necessary to achieve the professional and businesslike dress standard required of all staff. The court declined to decide this factual issue itself, emphasizing the need for a fresh, impartial assessment.

Both parties were granted the opportunity to seek permission to appeal the decision within 14 days. No new precedent was established by this ruling; the direct effect is that the original finding of discrimination is vacated pending reconsideration.