Appeal No. UKEAT/0254/03/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 October 2003
Judgment delivered on 27 November 2003

Before
THE HONOURABLE MR JUSTICE KEITH
MR G LEWIS
MR G H WRIGHT MBE

DEPARTMENT FOR WORK AND PENSIONS	APPELLANT

MR MATTHEW THOMPSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B CARR
(of Counsel)
Department for Work and Pensions
Department of Health
(Employment Team)
Office of The Solicitor
48 Carey Street
London WC2A 2LS	
For the Respondent	MS K MONAGHAN
(of Counsel)
Instructed By:
Messrs Thompsons
Solicitors
Arundel House
1 Furnival Square
Sheffield S1 4QL	

THE HONOURABLE MR JUSTICE KEITH:

Introduction

1.   Matthew Thompson works for Jobcentre Plus.   His work does not bring him into contact with members of the public.   When he was required to wear a collar and tie at work, he objected.   He complained that the requirement discriminated against men.   In a well-publicised decision earlier this year, an Employment Tribunal in Manchester decided that it had been discriminatory for his employers to require him to wear a collar and tie at work.   His employers now appeal against that decision.   

2.   The Employment Tribunal was told that a number of other men who worked for Jobcentre Plus had taken a similar stance to that taken by Mr Thompson.   Over 40 cases were on hold awaiting the decision of the Employment Tribunal in Mr Thompson’s case.   After the Employment Tribunal had ruled in Mr Thompson’s favour and had awarded him compensation of £1,000.00, a large number of men who worked for Jobcentre Plus lodged similar complaints with the Employment Tribunal.   We were told that the number of cases now awaiting the outcome of this appeal is in the region of 6,950.   We therefore approach the case with a keen sense of its importance.   However, every case must be decided on its own facts, and it is the facts of this particular case which we address first.   

The facts

3.   Jobcentre Plus.   Jobcentre Plus is an agency of the Department of Work and Pensions.   It was created in 2002.   It was an amalgamation of the Employment Service (which had been an agency of the former Department of Education and Employment) and the Benefits Agency (which had been an agency of the Department of Social Security).   It is responsible for a network of about 1,000 job centres and about 400 social security offices throughout Great Britain.   It employs about 90,000 staff.   

4.   The need for a dress code.   The role of Jobcentre Plus is to provide help for people looking for work and to ensure that those who cannot work receive the support they need.   Its aim is to offer a significantly better service than the Employment Service and the Benefits Agency were able to provide.   The restyling of its offices is already under way.   The introduction of a dress code was intended to reflect the desirability of its staff dressing in keeping with the businesslike way in which Jobcentre Plus intended to provide enhanced services to the public.   And since one of the key objectives of Jobcentre Plus was “to help more people into work”, it hoped to encourage job applicants to dress appropriately by ensuring that its staff set the right example.   

5.   In addition, there was a need to integrate the practices of the Employment Service and the Benefits Agency.   The Employment Service had required all of its staff “to present a clean and tidy appearance and to dress in a business-like way”.   Its managers were advised that “employees should be presenting similar standards of appearance to those that you would expect to see in a bank or building society”.   Denims and trainers were not allowed, and men were required to wear a collar and tie.   By contrast, the Benefits Agency did not have a dress code, though if its staff worked in a job centre run by the Employment Service, they were expected to comply with the Employment Service’s dress code.   In these circumstances, the employers’ evidence in the Employment Tribunal was that “[f]aced with the two different inheritances, doing nothing was not an option”.

6.   The dress code.   The new dress code was announced on 11 April 2002.   It was to apply from 15 April 2002.   All staff were required to dress “in a professional and business-like way”.   Men were required to wear a collar and tie, though in hot weather ties could be removed with the permission of management.   Women were required merely “to dress appropriately and to a similar standard”.   All staff were required “to wear footwear appropriate to the business environment”.   The dress code continued:

“Within these simple rules, staff are free to decide what clothes to wear.   However, they should not wear obviously inappropriate dress such as: denim clothing; lycra leggings; shorts; cropped tops; trainers; and baseball caps.”

We interpose to note that to the extent that these items were gender-specific, i.e. lycra leggings and cropped tops, they applied to women only.   The dress code continued:

“This list is not exhaustive; your manager will speak to you if you are wearing an item of clothing that they believe does not conform to the dress standard, and you will be asked not to wear it again.”

7.   In case there was uncertainty about whether any particular items of clothing should not be worn, further guidance was subsequently given locally.   The Employment Tribunal was provided with the guidance given by senior managers to junior managers in the region in which Mr Thompson worked.   It is unnecessary to set out that guidance in detail, but the Employment Tribunal referred to one item on the list to give a flavour of the nature and extent of the guidance.   T-shirts were acceptable provided that logos were not displayed and the embroidery was tasteful.   If they were loose-fitting, they had to be tucked in.   The Employment Tribunal noted that the guidance given about T-shirts could only have applied to women.   The requirement that men had to wear a collar meant that they could not wear T-shirts at all.   

8.   Compliance with the dress code was not required until 3 June 2002.   Thereafter, compliance with it was mandatory.   Staff could apply for an advance of their salary of up to £150.00 to enable them to comply with it.   

9.   The Employment Tribunal’s analysis of the dress code.   The Employment Tribunal analysed the dress code as follows:

	(i)   It was mandatory for men to wear a collar and tie.

(ii)   Women had to dress appropriately “to a similar standard” (which we have understood to mean to a level of smartness equivalent to a collar and tie for men).

(iii)   There were a few specific items of clothing which neither men nor women could wear, but the list of those items was not exhaustive.

(iv)   Although the dress code did not amount to a uniform, the overarching requirement was for members of staff to dress in a professional and businesslike way.   

To this, it should be added that the Employment Tribunal found that staff were not being required to adopt the standard of dress appropriate to that of a bank or building society.   It found instead that management expected staff to “dress smartly”.   The Employment Tribunal also found that as a result of the code, women continued to dress more or less as before, but men had to start wearing a collar and tie.   

10.   Mr Thompson.   Mr Thompson works in the office of Jobcentre Plus in Stockport.   Prior to the creation of Jobcentre Plus, he had been working for the Benefits Agency.   Since the Benefits Agency did not have a dress code, the dress code introduced on the creation of Jobcentre Plus could well have been quite a change for him. 

11.   Mr Thompson is an administrative assistant.   His responsibilities include sorting post, filing and other clerical duties.   For a few minutes a day he has to carry crates of files.   Women in the office do that as well, and the work is not onerous.   He has not been provided with any special clothing to wear while carrying out this part of his duties.   The Employment Tribunal described him as not coming “face-to-face” with the public in the course of his duties.   We have taken that to mean that his duties did not bring him into contact with members of the public, but whether he was visible to members of the public we simply do not know.   

12.   Mr Thompson refused to wear a collar and tie at work.   On 11 June 2002, he was instructed to comply with the new dress code.  He declined to do so, and received a formal warning on 18 June 2002.   Thereafter he decided to comply with the code but under protest.   When his complaint was presented, he complained that the requirement that he wear a collar and tie amounted to unlawful sex discrimination.   

The relevant statutory provisions

13.   Section 1(1)(a) of the Sex Discrimination Act 1975 (“the Act”) provides (so far as is material):

“…..a person discriminates against a woman if …..on the ground of her sex he treats her less favourably than he treats or would treat a man.”

This section is to be read as applying equally to the treatment of men: see section 2(1) of the Act.   Thus, a person discriminates against a man if on the ground of his sex he treats him less favourably than he treats or would treat a woman.   Section 6 of the Act sets out the circumstances in which discrimination in the employment field is unlawful.   It is common ground that the only basis on which any discrimination of Mr Thompson could be said to be unlawful is if the treatment of him meant that he was subjected to a “detriment” within the meaning of section 6(2)(b).   

14.   The discrimination of the kind to which section 1(1)(a) relates is colloquially called “direct” discrimination.   It is to be contrasted with “indirect” discrimination in which the discrimination is ostensibly on other grounds but has the effect of discriminating on the grounds of sex.   A defence of justification is not available in cases of direct discrimination.   Indeed, this case is not concerned at all with whether it was reasonable for Jobcentre Plus to introduce a new dress code, or whether the particular requirements of the dress code were fair or served an identifiable business need.   The only question is whether it impacts more onerously on men than on women.   

15.   There were three elements of the statutory definition of discrimination which the Employment Tribunal had to consider:

(i)   Had the treatment of Mr Thompson been less favourable than his employers’ treatment of their female staff?

(ii)   If so, had such less favourable treatment of Mr Thompson been on the ground of his sex?

	(iii)  If so, had Mr Thompson thereby been subjected to a detriment?

The Employment Tribunal answered all these questions in Mr Thompson’s favour.

16.   There could have been little doubt that if Mr Thompson had been treated less favourably than his employers’ female staff, his less favourable treatment would have been on the ground of his sex.   The requirement to wear a collar and tie was found by the Employment Tribunal to be gender-specific in the sense (we presume) that, although a collar and tie can be worn by women (usually but not necessarily as part of a uniform), only men were being required to wear a collar and tie at work: Mr Thompson was being required to wear them because he was a man.   And the Employment Tribunal found that he had been subjected to a detriment on two bases.   First, he was having to change his previous style of dress and was being required to wear clothes which he did not want to wear, in circumstances in which he felt (a) that the requirement was unnecessary because he did not come into contact with the public, and (b) that he was being treated less favourably than women because no particular item of clothing was mandatory for women, they could continue to wear what they had worn before, and their choice of what they could wear was far wider.   Secondly, he was disciplined for not wearing a collar and tie.   There is no challenge to the Employment Tribunal’s finding that Mr Thompson had been subjected to a detriment, though Mr Bruce Carr for the employers told us that that was only because the employers accepted that it had been open to the Employment Tribunal to conclude that the disciplining of Mr Thompson for his refusal to wear a collar and tie amounted to a detriment.   No such concession was made in respect of the first ground on which the Employment Tribunal found that Mr Thompson had been subjected to a detriment.   

17.   Accordingly, the issue on this appeal relates to the Employment Tribunal’s finding that in requiring Mr Thompson to wear a collar and tie, his employers had treated him less favourably than their female staff.   Two points should be made here.   First, treating your female staff differently from your male staff does not necessarily mean that men are treated less favourably than women, or that women are treated less favourably than men.   The definition of discrimination focuses on less favourable, not different, treatment.   As Phillips L.J. said in Smith v. Safeway Plc [1996] ICR 868 at p. 876H:

“If discrimination is to be established, it is necessary to show not merely that the sexes are treated differently, but that the treatment accorded to one is less favourable than the treatment accorded to the other.”

18.   Secondly, in order to determine whether a man has been treated less favourably than a woman, it is necessary to compare like with like.   That is the effect of section 5(3) of the Act, which provides (so far as is material) that “[a] comparison of the cases of persons of different sex ….. must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.   Although Mr Thompson seeks to compare his treatment with all other female staff (because men had to wear clothing of a particular kind whereas women did not), he also seeks to compare his treatment with that of five particular female colleagues.   Photographs were produced to the Employment Tribunal of them at work following the introduction of the new code.   At no time had management complained that they were not complying with the code.   

The relevant authorities

19.   The first reported case dealing with the discriminatory effect of dress codes was Schmidt v. Austicks Bookshops Ltd. [1978] ICR 85.   The issue was whether a requirement for women who worked in a bookshop and who came into contact with members of the public to wear a skirt meant that they were being treated less favourably than the men.   (A further issue relating to overalls is not relevant for present purposes).   The Employment Appeal Tribunal dismissed Ms Schmidt’s appeal from the Industrial Tribunal’s finding that requiring her to wear a skirt was not discriminatory.   At p. 87G, the Employment Appeal Tribunal (Phillips J. presiding) said:

“…..if one considers the situation of the men and the situation of the women there was no comparable restriction which could be applied to the men, equivalent to that applied to the women preventing them from wearing trousers, which could make it possible to lead to the conclusion that the women were being treated less favourably than the men.”

But although there was no comparable restriction which could have been imposed on the men, the Employment Appeal Tribunal noted that they too had been subjected to some restrictions.   At p. 88A-B, it said:

“For example, they were not allowed to wear tee-shirts; and it is quite certain, on a reasonable examination of the evidence, that they would not have been allowed to wear, had they sought to do so, any out-of-the-way clothing.”

Having identified that feature of the case, the Employment Appeal Tribunal continued at p. 88B-F:

“And so they were subjected to restrictions, too, albeit different ones – because, as we have already said, the restrictions to which the women were subjected were not appropriate to the men.   Experience shows that under the Sex Discrimination Act 1975 a lot depends on how one phrases or formulates the matter of which complaint is made.   Here it has been formulated in the terms of skirts and overalls.   As has been pointed out, in another case it might be in terms of ear-rings for men, long hair, all sorts of possibilities.   But it seems to us that the realistic and better way of formulating it is to say that there were in force rules restricting wearing apparel and governing appearance which applied to men and also applied to women, although obviously, women and men being different, the rules in the two cases were not the same.   We should be prepared to accept what is ground 3 in the respondents’ notice, which is an alternative contention and is: 

‘that in any event, in so far as a comparison is possible, the employers treated both female and male staff alike in that both sexes were restricted in their choice of clothing for wear whilst at work and were both informed that a certain garment should not be worn during working hours.’

It seems to us, if there are to be other cases on these lines, that an approach of that sort is a better approach and more likely to lead to a sensible result, than an approach which examines the situation point by point and garment by garment.”

20.   The Schmidt case was considered by the Court of Appeal in the Safeway case.   In that case, a male delicatessen assistant at a supermarket was dismissed because his hair, which he wore in a ponytail, infringed the rules for male staff, which stipulated tidy hair not below collar length and no unconventional hair styles.   Female staff were allowed to wear their hair long.   The rule was therefore not based on hygiene or safety, but on appearance.   The Court of Appeal restored the Industrial Tribunal’s decision that requiring Mr Smith to wear shorter hair was not discriminatory.   One of the issues in the case was whether the principles to be derived from the Schmidt case were correct.   In the course of his judgment, Phillips L.J. identified two features which had informed the Employment Appeal Tribunal’s thinking in the Schmidt case.   First, it is necessary to consider “the effect of a code governing appearance overall, not item by item” (p. 877A).   Secondly, “a code which applies a conventional standard of appearance is not, of itself, discriminatory” (p. 877E).   He agreed with both propositions.   As for the first, he said at p. 877B-C:

“In my judgment, a package approach to the effect of an appearance code necessarily follows once one accepts that the code is not required to make provisions which apply identically to men and women.   Phillips J. held that this was the approach more likely to lead to a sensible result in that case and in cases like it.   I agree.   This is not to say that when applying the test, the requirement of one particular item of a code may not of itself have the effect that the code treats one sex less favourably than the other.   But one has to consider the effect of any such item in the overall context of the code as a whole.”

As for the second, he said at pp. 877H-878D:

“I can accept that one of the objects of the prohibition of sex discrimination was to relieve the sexes from unequal treatment resulting from conventional attitudes, but I do not believe that this renders discriminatory an appearance code which applies a standard of what is conventional.   On the contrary, I am inclined to think that such a code is likely to operate unfavourably with regard to one or other of the sexes unless it applies such a standard.   An appearance code may have effects which go beyond appearance, comfort and health are examples, but the most obvious and immediate effect that it has, axiomatically, is on appearance.   The primary reasons why an individual is likely to object to an appearance code is because of the way it makes that individual appear to others, or indeed in the mirror.   As [counsel for Safeway] has pointed out, a code which made identical provisions for men and women but which resulted in one or other having an unconventional appearance, would have an unfavourable impact on that sex being compelled to appear in an unconventional mode.   Can there be any doubt that a code which required all employees to have 18-inch hair, earrings and lipstick, would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards?   I put that question to [counsel for Mr Smith], and he accepted that such a requirement would operate unfavourably towards men.   The reason for that is that the appearance criterion to be applied when considering that question is: what is the conventional standard of appearance?   Indeed, it seemed to me that [counsel for Mr Smith] implicitly conceded that when he submitted to us that what is discrimination can change as society changes.   A code which applies conventional standards is one which, so far as the criterion of appearance is concerned, applies an even-handed approach between men and women and not one which is discriminatory.”

21.   The two other members of the court agreed with these propositions.   As for the first, Peter Gibson L.J. cited the Schmidt case without disapproval when he said at p. 880C that it established that rules governing appearance “are not discriminatory if, taken as a whole and not item by item, the one sex is not less favourably treated than the other.”   As for the second, he said at p. 881B-D:

“The employers’ rules for men and women, although differing in detail, possess as a common feature requirements as to appearance that excluded the unconventional.   The employers wish to present a conventional image for the sound commercial reason that that was what their customers wanted.   The rules were applied vigorously both for men and for women.   The industrial tribunal was entitled to conclude that the employers, operating as they did as a retailer, properly had a dress and appearance code, and that it was not discriminatory to ban unconventionally long hair or hair in a ponytail for men when such length of hair or ponytail for a woman was not unconventional and would not have led to dismissal.”

And Leggatt L.J. approved of both propositions when he said at p. 881G:

“Provided that an employer’s rules, taken as a whole, do not result in men being treated less favourably than women, or vice versa, there is room for current conventions to operate.”

22.   In the interests of completeness, we should mention three other cases on which the Tribunal specifically commented, though one of them, Blaik v. The Post Office [1994] IRLR 280, went to the Employment Appeal Tribunal on a jurisdictional point only.   Another, Burrett v. West Birmingham Health Authority [1994] IRLR 7, related to the difference between the uniforms of male and female nurses.   Female nurses had to wear a cap whereas male nurses did not, though male nurses had to wear a tunic with epaulettes.   The Employment Appeal Tribunal (Knox J. presiding) followed the Schmidt case and upheld the Industrial Tribunal’s finding that the requirement was not discriminatory of women.   The fact that one feature of the female nurses’ uniform (which was believed by the applicant to be demeaning to women) did not amount to less favourable treatment of the female nurses than the male nurses.   The third case was Cootes v. John Lewis Plc (EAT/1414/00), which related to staff working in a department store who had contact with customers.   Men were required to wear a dark business suit, shirt and tie, whereas women were required to wear a blue suit and green blouse made of a polyester material.   The complaint was that what the men were required to wear made them appear to be more senior than the women.   The Employment Appeal Tribunal (Judge Peter Clark presiding) upheld the Employment Tribunal’s finding that this did not amount to less favourable treatment of the female staff than men.   

The reasoning of the Employment Tribunal

23.   The core of the Employment Tribunal’s reasons for concluding that Mr Thompson was treated less favourably than female members of staff by being required to wear a collar and tie is contained in paras. 65-73 of its reasons.   As we read them, two features informed the Employment Tribunal’s reasoning.   First, men were required to wear clothing of a particular kind whereas women were not (paras. 67 and 72).   In consequence, women had a greater choice in what they could wear than men (para. 71).    The Employment Tribunal’s reasons for its decision at the subsequent remedies hearing shows (para. 21) that the Employment Tribunal thought that the only way to eliminate discrimination created by the requirement on men to wear clothing of a particular kind was to require women to wear clothing of a particular kind as well.   Secondly, the requirement on men to wear a collar and tie meant that “ a higher standard” was being imposed on them (para. 67).   We presume that what the Employment Tribunal meant by that was that a higher level of smartness was being required of men than women.   

24.   The Employment Tribunal then considered whether that conclusion was consistent with legal principle.   In the light of what the Employment Tribunal thought the House of Lords had decided in James v. Eastleigh Borough Council [1990] 2 AC 751, the Employment Tribunal asked itself (para. 77) whether, but for the fact that Mr Thompson was a man, he would have been required to wear a collar and tie.   Since the answer to that question had to be “No”, he had been treated less favourably than women members of staff (para. 78).   But the Employment Tribunal recognised that the application of the “but for” test might conflict with the application of the principles approved in the authorities to which we have referred (paras. 79-80).   It regarded those principles as recognising that men and women dress differently, but nevertheless requiring employers to take an “even-handed” approach when introducing a dress code which adopts conventional standards (para. 81).   In view of the first of its two core findings, the Employment Tribunal thought that an even-handed approach meant that if members of one sex were required to wear clothing of a particular kind, so too should members of the other sex.   The Employment Tribunal proceeded to compare the Jobcentre Plus dress code with the requirements imposed by the employers in the authorities to which we have referred.   The Employment Tribunal concluded that the differences between the Jobcentre Plus dress code and the requirements imposed in those cases were such that the conclusion in those cases that there had been no discriminatory treatment did not mandate a similar conclusion in the instant case.   

Our analysis of the Employment Tribunal’s reasoning

25.   In our judgment, there are a number of flaws in the Employment Tribunal’s understanding of the legal principles.   First, it misunderstood the effect of the James case.   In that case, admission to a leisure centre run by the Council was free of charge for persons who had reached the state pensionable age.   Since the state pensionable age for women was lower than men, women between the ages of 60 and 65 were admitted free of charge whereas men were not.   The issue was whether the less favourable treatment of men was on the ground of their sex.   The House of Lords held that it was.   The fact that the Council had been motivated by the laudable wish to ease the financial burden of persons whose resources might be reduced by retirement was irrelevant.   The Council was itself perpetuating the discriminatory features in the state pensionable age.   In effect, the House of Lords applied a “but for” test; but for the difference in sex, would the Council have treated men and women in the same way?   Since the answer to that question was “Yes”, the difference in treatment was on the ground of sex.   

26.   However, the “but for” test only comes into play once it has been established that members of one sex have been treated less favourably than members of the other.   It has no application to the question whether members of one sex have been treated less favourably than members of the other.   Indeed, if the “but for” test is applied to that question, as the Employment Tribunal did, differences in treatment of the sexes will always be regarded as less favourable treatment.   

27.   Secondly, the Employment Tribunal misunderstood the effect of what Phillips L.J. had said in the Safeway case.   It will be recalled that in confirming the correctness of “a package approach”, Phillips L.J. said at p. 877C:

“This is not to say that when applying the test, the requirement of one particular item of a code may not of itself have the effect that the code treats one sex less favourably than the other.   But one has to consider the effect of any such item in the overall context of the code as a whole.”

Thus, an even-handed approach does not necessarily mean that members of one sex are treated less favourably than members of the other simply because members of one sex are required to wear clothing of a particular kind but members of the other are not.   It will depend on “the overall context of the code as a whole”.   The relevant context when considering the code introduced by Jobcentre Plus was its overarching requirement for its staff to dress in a professional and businesslike way.   The issue which the Employment Tribunal should have addressed, therefore, was whether the requirement for male members of staff to wear a collar and tie whereas no particular form of dress was required for female members of staff meant that the male members of staff were being treated less favourably than female members of staff in the context of that overarching requirement which applied to all members of staff.   We do not think that the Employment Tribunal addressed that issue.   

28.   Moreover, the exercise which the Employment Tribunal conducted in comparing the dress code introduced by Jobcentre Plus with the requirements imposed by the employers in the authorities to which we have referred would not normally be regarded as a particularly profitable one.   You normally look to previous cases more for the principles which they establish, rather than for guidance as to whether the application of those principles to the facts of those cases assists in the application of those principles to the facts of the instant case.   But we do not go so far as to say that the comparative exercise which the Employment Tribunal conducted was not a legitimate one.   Having said that, though, the distinguishing features which the Employment Tribunal identified between those cases and the instant case were not, in truth, distinguishing features at all.   For example, the Employment Tribunal said at para. 84(a) that in the Schmidt case “the employers treated male and females alike because there were rules restricting wearing apparel which were enforced equally for both sexes”.   But that was the same here: Jobcentre Plus required all its staff, whether men or women, to comply with the new dress code.   

29.   Furthermore, the Employment Tribunal’s comments on some of these cases showed that it had misunderstood what the issues in the cases had been.   The Employment Tribunal said (para. 84(e)) that in the Cootes case “the comparison was between a dark business suit, shirt and tie for men and a blue suit and green blouse for women.   In other words there was equal prescription for both parties”.   But the fact that both men and women were required to wear clothing of a particular kind was not the critical issue: the issue was whether the clothing which women were required to wear made them appear junior to the men.   Again, the Employment Tribunal said (para. 84(c)) that in the Burrett case “the demand that female nurses had to wear caps was matched by the demand that male nurses had to wear jackets with epaulettes”.   But the case did not turn on the fact that the female nurses’ caps equated to the epaulettes worn by the men.   The issue was whether the caps were demeaning to women.   Indeed, the comment which the Employment Tribunal made about the Burrett case is a further indication of the Employment Tribunal’s belief that (a) 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 necessarily treated less favourably than the latter, and (b) that discrimination can be eliminated by requiring the latter to wear clothing of a particular kind as well.   As we have said, that is not the state of the law.   

The proper approach

30.   It is unquestionably the case that the requirement on male members of staff to wear a collar and tie meant that female members of staff had a far greater choice in what they could wear than men.   But the Employment Tribunal acknowledged Jobcentre Plus’s right to introduce and enforce a dress code whose aim was to achieve a uniform level of smartness on the part of all its staff.   Thus, in the context of the overarching requirement for its staff to dress in a professional and businesslike way, the question for the Employment Tribunal was whether, applying contemporary standards of conventional dresswear, the level of smartness which Jobcentre Plus required of all its staff could only be achieved for men by requiring them to wear a collar and tie.   The level of smartness which Jobcentre Plus thought appropriate for women can be seen from the photographs of Mr Thompson’s five women colleagues.   If, for example, a level of smartness for men which equates to dressing in a professional and businesslike way which is appropriate for an undertaking like Jobcentre Plus can be achieved by men dressing otherwise than in a collar and tie, then the lack of flexibility in the dress code introduced by Jobcentre Plus would suggest that male members of staff are being treated less favourably than female members of staff because it would not have been necessary to restrict men’s choice of what to wear in order to achieve the standard of smartness required.   The issue is not resolved by asking whether the requirement on men to wear a collar and tie meant that a higher level of smartness was being required of men rather than women.   It is resolved by asking whether an equivalent level of smartness to that required of the female members of staff could only be achieved, in the case of men, by requiring them to wear a collar and tie.   

31.   In her succinct and focused submissions, Ms Karon Monaghan for Mr Thompson took two points.   First, although she readily conceded that the Employment Tribunal had wrongly applied the “but for” test laid down in the James case to an issue to which it was not intended to apply, she contended that the Safeway case could no longer be regarded as the last word on the topic of dress codes in the light of the James case.   However, she did not develop that argument at length, because she recognised that the Employment Appeal Tribunal was likely to regard itself as bound by the Safeway case, and to leave it to the Court of Appeal to decide what impact the James case has on the principles annunciated in the Safeway case.   That was why she put far greater forensic stress on her second point, which was that on the primary findings of fact which the Employment Tribunal made, the only conclusion to which the Employment Tribunal could have come, on a proper application of the principles in the Safeway case, was that Mr Thompson had been treated less favourably than the female members of staff.   We do not agree.   The Employment Tribunal did not make any findings which went to the question as to whether the only way in which men could achieve the level of smartness which Jobcentre Plus required of both sexes was by wearing a collar and tie.   

Conclusion

32.   For these reasons, this appeal must be allowed, and the decision of the Employment Tribunal must be set aside.   It is not for the Employment Appeal Tribunal to decide whether men have to wear a collar and tie in order to achieve the level of smartness which Jobcentre Plus required of both sexes.   That is for the Employment Tribunal to decide.   Mr Thompson’s case will therefore have to be remitted to the Employment Tribunal for that issue to be addressed.   We have considered whether we should remit the case to the same Employment Tribunal for it to reconsider Mr Thompson’s case in the light of the principles we have identified, but we have concluded that that would not be an appropriate course to take.   The Employment Tribunal might be tempted, albeit completely unconsciously, to decide the case in such a way as to leave its original conclusion intact.   We therefore direct that the case be remitted to a differently constituted Employment Tribunal.   We very much regret the inconvenience and expense which this will cause, but we do not think that we have any other alternative.

33.   Finally, at the conclusion of the hearing, both sides asked for permission to appeal if they lost.   It may be that, now that the case is to be remitted for a rehearing by a differently constituted Employment Tribunal, both sides would prefer that hearing simply to go ahead.   But we leave the question of permission to appeal open.   If either of the parties wishes to apply for leave to appeal, they should do so within 14 days of the handing down of this judgment, and we will consider whether to grant permission to appeal without a further hearing.