As you will have seen when
entering this site, my hair is longer than the average. I knew as a small child
that my identity demanded long hair and regular trips to the barber shop to have
it shorn “short back and sides” were a misery endured until my teens when I
was free to make my own decisions. Apart from a couple of brief interludes, my
hair has remained pretty much shoulder length ever since. I like it, my wife,
Frankie, likes it; so what is the problem?
Well, mostly there haven’t been any – I grew up during the seventies and even when fashions changed during the eighties, no one was too bothered by longhaired men. No it was during the latter part of the nineties that the more conventional and puritan opinion started to reassert itself. However, I was working in an industry that was once nationalised and had a fairly liberal approach to dress. It does not have a written policy and the amount of men with long hair are about the national average and left alone. I was surprised to discover therefore that my manager had been requested to speak to me about my hair. She refused on the grounds that this was irrelevant to my job. I was then approached by the human resources manager who advised me that my appearance would be trendier if I cut my hair. Now, come on, please…I’m a man in my mid forties who rides a motorcycle through choice, wears western boots with a business suit and wears hair down on the shoulders – along with my gothic tendencies, do I look like I want to be trendy?
It was about a year later that they tried again – this time it was subtler. Senior managers were advised that the department had an unprofessional air – including such things as inappropriate hairstyles. When I discovered that people were openly discussing my having to get my hair cut (which they found highly amusing), I decided enough was enough and took direct action and complained. This essay distils the research I carried out before taking on my employer over the matter. While all of the information here is related to English law, the basic principles will apply elsewhere.
Let’s be absolutely clear
here, the sex discrimination act does not provide protection for men with long
hair – it never did and was not designed to. It was written to protect people
from unfair treatment on the basis of gender. For example, a dress code that
applies only to one gender or other – or people promoted on the basis of
gender and so on. However, as with all acts of parliament, the wording is open
to interpretation and that must be done by bringing a case before the courts. In
the case of employment matters, this will be the Employment Tribunal, the Court
of Appeal and the House of Lords (should it get that far). So, if your employer
wishes to impose a dress code that requires “conventional” appearance on the
part of employees, they are perfectly entitled to do so – under the act.
However, all is not as it seems…
The first significant case is that of Schmidt v Austicks Bookshops Ltd (1977). Schmidt took her employer to the tribunal for refusing to allow her to wear trousers to work. In 1977, it was deemed reasonable for the employer to make such an imposition because as the tribunal stated, a woman wearing trousers to work was equivalent to a man wearing a tee shirt. However, after twenty-five years, that type of assumption is no longer safe. While the Schmidt judgement has been used in similar cases during that time, there have inevitably been challenges. In 1996, Smith v Safeway, the tribunal upheld Mr Smith’s claim for unfair dismissal for refusing to cut his hair on the grounds that women were allowed to wear their hair long. While this was overturned in the court of appeal, it indicated a change in attitudes and that the Schmidt judgement would be overturned before long. That happened in 2000. Two cases occurred that year along with a significant change in statute law – more of which later.
Judy Owen succeeded in her claim against the Professional Golfer’s Association in what was apparently an identical case to the Schmidt one. There are a couple of points worth bearing in mind here and they are particularly important to anyone wishing to challenge an employer; The PGA lost their case because they made up their dress code in an ad-hoc fashion. There was no written policy – and, Judy Owen was clearly subject to discrimination as the code was only applied to her in this manner. The changing attitudes also meant that the defence could no longer liken women wearing trousers to men wearing tee shirts.
In the same year, Mark Pell took his case against the Wheatley Hotel to the tribunal. He applied for a part time job as a barman and was asked during the interview whether he would be prepared to cut off his ponytail if he was offered the position. He refused and the interview was terminated. Now, apart from the arrant stupidity of the employer who deserved to lose for that reason alone, the matter rested on that of dress codes and how they are justified, communicated and enforced. Employers cannot just make them up as they go along and they cannot apply them as and when they feel like it. Nor can they use it on an individual-by-individual basis – that is discrimination.
All of these cases come down to this:
Dress
codes must be justified - In Catharell v Glyn Nurtrall Ltd (1981) an electrician
was unfairly dismissed for refusing to have his haircut. The tribunal said,
"As long as hair length was not detrimental to the respondents' business or
his performance of his duties, he was entitled to determine for himself the
personal question of how long he should wear his hair."
Dress codes must be clearly communicated in a written policy
Dress codes must be evenly applied to both genders – even though they may be different for each gender.
Dress codes must be fair and reasonable.
And, importantly, if an employer does not want to be dragged before a tribunal, they really should consult with their staff in the first instance.
Having done that, the policy must be regularly reviewed for currency – not only changing attitudes, but also changing law. Which brings me neatly to the Human Rights (1998) Act.
In October 2000, the Human Rights Act entered the statute book. The UK enactment of the Human Rights convention, the parts that interest us here are:
Article 8; Right to respect for private and family life - as privacy is likely to have a broad interpretation.
Article 9; Freedom of thought, conscience and religion - as some will wear long hair for these reasons.
Article 10; Freedom of expression and this is the biggie. Not allowing an employee to wear, say, facial piercings during the working day is not an onerous imposition nor does it impinge on free expression as the employee may put the jewellery in at the end of the working day. Insisting that an employee has his hair shorn is a semi-permanent imposition that reflects on individual identity and therefore freedom of expression - we cannot grow our hair back at five in the evening.
Consequently, If an employer wishes to impose a dress code and not fall foul of this act, they must now demonstrate that their code is necessary in a democratic society rather than just reasonable. For example, a dress code that restricts these rights may be acceptable if it is imposed in the interests of public safety, health or morals, or the protection of the rights of others.
It is early yet, and we await the first judgement brought under this act with interest.
During March 2003, Matthew Thomson succeeded in his claim for sex discrimination against the Department for Work and Pensions. He claimed sex discrimination because his employer imposed a dress code on him as a man, yet imposed no equal restriction on women. The "swings and roundabouts" approach used since the Schmidt judgement was applied here. The law does not apply a like-for-like measure. So, for example, Safeway were successful at appeal because although they applied different hair restrictions on men and women, they were equally restrictive overall - this is the tee shirt and trousers argument originally applied in Schmidt. In Matthew Thomson's case, male workers were required to wear collar and ties, yet female employees were subject to no restrictions - indeed, they were allowed to wear sports tops. Despite the DWP's "disappointment" and intention to lodge an appeal, there is clear discrimination in law. It is this imbalance, rather than a direct like-for-like restriction that you must consider when accusing an employer of discrimination.
Firstly, remain calm and polite. Losing your cool will merely play into the hands of prejudice and bigotry – confirming what they already thought.
Ask to see the dress code policy. If one exists, you may seek to challenge it in light of recent legal history. If one does not exist, then they cannot impose what isn’t there. If you haven't seen it before, why not? Dress codes must be clearly communicated to everyone if they are to be enforceable.
Does the code apply to everyone? If you are being singled out and others are not being required to comply, ask why this is. Your employer should have a policy covering discrimination and harassment and a complaint through that procedure might be appropriate.
Is the code reasonable? What justification is offered? And, importantly, ask the killer question; is it necessary in a democratic society?
Be reasonable. If your employer wishes you to wear it tied back – then why not? You can always untie it at five o’clock.
If your employer does not have a dress code and wishes to impose one, be actively involved in any consultation process – reminding people about the legal implications of getting it wrong.
Religious fundamentalists might try to justify their narrow-minded bigotry by quoting Corinthians at you. They will rant that men should be men (dominant and therefore shorn) and women should be women (submissive and therefore longhaired). This nonsense would be laughable if these misguided peeps weren't so serious with their outdated stereotypes.
My approach has always been to remind them that the bible was written over hundreds of years by different men in a changing, albeit primitive, culture. Largely anecdotal, sometimes allegorical and occasionally recounting real events, it is not the word of God, but man’s interpretation of the word of God, which is why it is frequently contradictory, including its position on long hair. Just because something is quoted in the bible doesn't necessarily mean that it is appropriate in a modern society - or should we stone witches to death?
If God wanted men to wear their hair short, it would stop
growing at half an inch. If that doesn’t cause a burst blood vessel or two,
you aren’t trying…
These
people will tell you that longhaired men are rebellious. Of course we are –
the world needs rebels and free thinkers. We are the counterpoint to the tyranny
of the narrow minded and bigoted. Consequently, I don't plan to use the bible as
a style guide....
If you are employed by the armed forces; tough - you knew what you were getting into....
Bill's Page - more useful stuff and links.
Copper Bracelets - decorative hair ties.
Hair Gloves - Keep your ponytail tidy during sports activities (or riding a motorcycle).
Long Hair Hyperboard - discussion board for long haired men.
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