Appeal No. EAT/185/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27 Ocotber 1994
	Judgment delivered on 9 December 1994

	Before

	THE HONOURABLE MR JUSTICE PILL

	MRS R CHAPMAN

	MR D A C LAMBERT

MR N A SMITH	APPELLANT

SAFEWAY PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P BIBBY
(Representative)
	F.R.U.
	67 Oakhurst Grove
	London
	SE22 9AQ

For the Respondents	MR C JEANS
(Of Counsel)
	Messrs Cartwrights
	Marsh House
	Bristol
	BS99 7BB

	MR JUSTICE PILL:   This is an appeal against the decision of the Industrial Tribunal held at Brighton whereby the Tribunal unanimously dismissed Mr N A Smith's application that he had been unfairly dismissed and that there had been sexual discrimination against him in the course of his employment.  Mr Smith was employed by Safeway PLC (Safeway), who operate supermarkets selling food, as a Delicatessen Assistant, from August 1988 until April 1992.

	The Applicant was dismissed because he let his hair grow long.  He had a "pony-tail".  He was allowed to stay while the pony-tail could be kept under his hat but it grew too long and fell out.  A female employee with hair of the same length and style would not have been dismissed.  No question of standards of hygiene arose.  No question arose upon the fairness of the procedure leading to dismissal or upon the even-handedness with which company rules were enforced.

	Section 1(1)(a) and Section 2(1) of the Sex Discrimination Act 1975, when read together, provide that "a person discriminates against a man in any circumstances relevant for the purposes of any provision of this Act if on the ground of his sex he treats him less favourably than he treats or would treat a woman".  By virtue of Section 6 of the Act, it is unlawful for an employer to discriminate against a male employee by dismissing him.  Such a dismissal would also be unfair.

	On behalf of the Appellant it is submitted that the facts disclose a straightforward case of sex discrimination.  On behalf of the Respondents, it is submitted that the treatment accorded to Mr Smith was not "less favourable", within in the meaning of the language of the statute, than the treatment which would have been accorded to a woman.  In matters of appearance, the law permits different rules to be applied to men and women provided they enforce a common principle of smartness if read as a whole.  The Respondents rely upon Schmidt v Austick's Bookshops [1977] IRLR 360.  It is common ground that the principle established in the case is good law.  Recently in Burrett v West Birmingham Health Authority [3rd March 1994 unreported](C.A.), upon an application for leave to appeal to the Court of Appeal, it was submitted that the application of the principle in contemporary circumstances should be considered by the Court of Appeal.  Evans LJ, with whose judgment Rose LJ agreed, stated that "we are not aware of any doubt having been cast upon its authority or of any perceived need for it to be reconsidered".  There is dispute as to the application of Schmidt to the present facts.

	In Schmidt, the female employee complained that the requirement that she should wear a skirt and not trousers while serving the public was unlawful discrimination on the ground of sex.  It was agreed that men would not be asked to wear skirts.  Giving the judgment of the Tribunal, Phillips J stated that "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".

	Phillips J continued:-
	"But it is possible, and we would wish, to approach the matter a little more broadly and perhaps a little more positively, because the evidence showed that although there was less scope for positive rules in the case of the men, in that the choice of wearing apparel was more limited, there were restrictions in their case, too.  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.  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 the 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".

	Safeway's relevant rules are set out in paragraphs 11 and 12 of the Tribunal's decision:-
	"11. ...... The rule with which we were concerned is contained within the coloured leaflet: "Look how you should look!", where there is a photograph headed: "Meat Department and Delicatessen Male Staff".  At the side of the photograph there is given the following direction:
		"Hats - in meat, delicatessen, bakery departments and canteen.  Tidy hair not below shirt collar length.  No unconventional hair styles or colouring"

	12.  The comparable rule for female staff in the same leaflet reads as follows:
		"Food handlers, Delicatessen, Meat and Bakery (female).  Tidy hair.  Your hair should be tidy.  Shoulder length hair must be clipped back.  No unconventional hair styles or colouring.  Hats or headbands for food handlers.""

	The Tribunal noted that Safeway "wished to promote a "conventional" image since this was most attractive to customers in what is a very cut-throat and competitive business".  Safeway submitted that "hair length is different for men and women and that this is part of the conservative image which they wished to project".  By way of conclusion the Tribunal stated:-
	"We accept, therefore, that a retail store is entitled to have a dress and appearance code".
Purporting to apply Schmidt, they stated that:-
	"An employer is entitled to a large measure of discretion in controlling the image of his establishment including the appearance of staff and especially so when, as result of their duties, they come into contact with the public".
Their overall conclusion (paragraph 51) was:-
	"We are satisfied that the Respondents acted reasonably in having rules about hair length for both men and women and we are satisfied that it was not discriminatory to have different lengths of hair for men and women because, quoting Phillips J, "Men and women being different, the rules in the two cases were not the same".  We are satisfied that there were rules governing both dress and appearance for men and women, although they were different rules, but they were nevertheless equally rigorously applied in both cases".

	The present is one of a number of cases involving Safeway where the present issue has been considered.  In Rewcastle's case, an Industrial Tribunal at Newcastle Upon Tyne (8th March 1990 unreported) held that the dismissal was unfair stating:-
	"Mr Jones' final point was that collar length hair for men is "conventional" and it is for the employer to decide what image he wishes his employees to present to the customer.  While we naturally accept the employer's right to determine standards of appearance and dress for his employees, this right must be subject to the operation of the Sex Discrimination legislation.  Further, we question whether a policy which is designed to mirror "conventional" differences between the sexes can be reconciled with the underlying rationale of the Sex Discrimination legislation which is to challenge traditional assumptions about sexes, not only as to their roles in society, and the tasks they perform, but also as to their appearance and dress".

	A contrary conclusion was reached by an Industrial Tribunal at Ashford Kent, (Stone and Holdstock v Safeway PLC [14th July 1994] unreported).  Another aspect of the relevant rule for men was noted, namely the provision that "day staff must be freshly shaven".  The Tribunal stated:-
	"We have no hesitation in finding that the regulations, although not identical in respect of the sexes, were fair and balanced, so that, looked at as a whole, the applicants were not subjected to less favourable treatment as a result of the imposition of the dress and appearance regulations than women employees would or would have been.  It is true that they could not have their hair as long as women employees could have it and had to have it in a form which was conventional for men, but in our view, the imposition and enforcement of that regulation as part of a balanced package, and having regard to the regulations in respect of the appearance of women employees, did not amount to "less favourable treatment" - without which, there can be no sex discrimination".

	Mr Bibby, for the Appellant, submits that Schmidt should be construed narrowly and to do so would be in accordance with European law.  Hair length could not be equated with dress.  Dress can be changed on leaving work whereas hair is worn into private life.  Hair length is not a function of any physiological difference between men and women.  Differences are a question only of custom and fashion.  Unlike differences in dress, there is no counter-balancing feature; the rule discriminates against men.  To uphold the decision, he submits, would be to enshrine in the law a discriminatory practice which was not based on a physiological difference.  He cited the opinion of Titone J in The People v Santorelli  Court of Appeals of New York [1992] 587 NYS 2d 601 that where "public sensibilities constitute the justification for gender-based classification, the fundamental question is whether the particular "sensibility" to be protected is, in fact, a reflection of archaic practice or a manifestation of a legitimate government objective".

	Reference was made to the "simple question" which the majority in the House of Lords in James v Eastleigh Borough Council [1990] ICR 554 held to be applicable in considering the meaning of the words "on the ground of" in Section 1(1)(a) of the 1975 Act.  Lord Goff, at page 574D, stated that "the problem in the present case can be reduced to the simple question - Did the Defendant Council, on the ground of sex, treat the Plaintiff less favourably than it treated or would treat a woman?".  Mr Jeans, for the Respondents, submits that James was not concerned with the words "less favourable", that criterion not being in issue in James, but with the words "on the ground of".  He submits, rightly, that the statute is concerned with less favourable treatment and not different treatment as such.  He submits that employers are entitled to have different requirements for the appearance of men and women in the work place.  As an aspect of appearance, hair is no different from clothing.  Employers operating retail premises are entitled to expect an appearance which they reasonably regard as conventional.  With respect to hair length, what is conventional for men may be different from what is conventional for women.  As another example, employers would be entitled to treat as unconventional a woman who shaved or almost shaved her head whereas they might accept a man who had become bald.  Different rules might properly be applied to the use of make-up or to facial hair.  In employment such as this, employers are entitled to insist upon a smart and conventional appearance and that might be defined differently for men and women.

	Mr Jeans also relies on the decision of this Tribunal in Burrett [1994] IRLR 7.  Burrett concerned the uniform worn by nurses.  Female nurses, but not male nurses, had to wear a cap, which the complainant found demeaning.  Knox J giving the judgment of the Tribunal stated that:-
	"There has to be shown less favourable treatment, and the fact that the complainant considers that she or he is being less favourably treated or is being demeaned does not of itself establish that there is less favourable treatment.  That is for the Industrial Tribunal to decide.  In our view the Industrial Tribunal addressed the right question and came to an eminently defensible conclusion when they said:
		 "The fact that the form of uniform differed for men and women does not in our view amount to less favourable treatment because of the difference in apparel and because the applicant objected to one particular part of the uniform and was disciplined as a result.""

	We respectfully agree with that decision and reasoning and agree that it is for the Industrial Tribunal to find what is less favourable, subject to perversity.  The facts of the present case are very different however.  The present decision cannot in our view be upheld on the basis of the distinction made in Burrett between a subjective and objective view of the difference which Safeway seek to impose.  Nor can the difference involved be dismissed as trivial.

	We are also unanimous in the view that the Tribunal have not expressed themselves well in paragraph 51, if, as appears, they were relying on Schmidt.  They have singled out hair length rather than treating the rules as a whole.  However it appears from earlier paragraphs and indeed the latter part of paragraph 51 that they did have regard to more general considerations and we would not reverse the decision because of the terminology they used.  The principle relied on is more convincingly stated in Stone and Holdstock.

	The lay members of this Tribunal have no difficulty in holding that the treatment was less favourable and self-evidently so.  The requirements laid down by Safeways for the appearance of Meat Department and Delicatessen staff with respect to hair style are capable of being applied to both men and women, in such a way as to take account of convention (and therefore be compatible with Schmidt), without placing the restriction they do on hair length for men only.

	There is no relevant physiological difference between men and women; and the need to present a conventional appearance at work is already met by the standards laid down as to hair style which, in the case of a pony tail, is specifically capable of being treated the same for both men and women.

	Unlike other requirements as to appearance - uniform, hair style, jewellery and the like - a restriction on hair length has effect not only during working hours but at all times.

	It is noted that, in Schmidt, as quoted above, Phillips J found favour with the contention "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 the choice of clothing for wear whilst at work and were both informed that a certain garment should not be worn during working hours". (Our emphasis)  The case of Schmidt addresses the issue of uniform in the context of appearance generally whilst at work; it does not address the issues of appearance which extend beyond working hours and thereby affect individual choice detrimentally at all times.

	It is clearly detrimental and fundamentally unfair to men to make a distinction as to the length of hair permitted and is inconsistent with the purposes of the Sex Discrimination Act.  There was a breach of Section 6 of the Act and the Appellant was unfairly dismissed.

	The Chairman finds the question much more difficult once the authority of the long-standing decision in Schmidt is accepted.  Schmidt appears to him to be concerned with appearance.  Employers are entitled to lay down reasonable requirements as to the way employees present themselves at work, if, for example, they come into contact with the public.  Employers can have regard to current conventions and to decline to accept what is "out of the way" as Phillips J put it.  What is conventional and what is out of the way for men will often be different from what is conventional and out of the way for women.

	If the employer is entitled to require an appearance which is not out of the way, it is difficult to distinguish between dress and other aspects of personal appearance including hair style.  Provided requirements for men and women can reasonably be related to current perceptions of what is a conventional appearance for men and for women, the requirements do not treat one sex less favourably than the other.  The sexes are treated differently but equally by the standard of what is conventional, a standard which Safeway are entitled to require of Delicatessen Assistants.  That is very far from saying that employers have a general right to dismiss men for growing their hair long.  The Industrial Tribunal were entitled to hold that in the circumstances of this case the treatment was not less favourable and it is not for this Tribunal to substitute its own view of what is conventional or of the merits of the pony-tail.

	The Chairman appreciates, he hopes, the merits of what appears to the majority an obvious and uncomplicated solution to the question posed in this case.  However, on the basis that the law, as explained in Schmidt, permits different rules for men and women, he feels obliged to dissent.

	For reasons given earlier, the appeal is allowed.  There was a breach of Section 6, the dismissal was accordingly unfair and the case is remitted to the Industrial Tribunal for the assessment of compensation.