Update on Employee Dress Policy
 Company dress codes are very important in many industries and, frequently, equally problematic. What initially sounds like an issue involving minor rules governing everyday activity can lead to disputes before the labor courts between employers and employees. Employers may generally adopt guidelines governing employee dress and appearance during working hours by virtue of their right to issue instructions. However, the latitude enjoyed by employers in such cases is frequently limited by the rights of employees. The relevant issues involved here include the right of works councils to be consulted under legislation governing co-determination as well as legislation intended to protect employees against discrimination and safeguard their right of personality.
This is illustrated once again by a case recently decided by the Cologne Higher Labor Court (Cologne Higher Labor Court, Order of 18 August 2010 – 3 TaBV 15/10). This case involved an employer who is responsible for passenger security checks at an airport. In order to ensure that employees present a uniform appearance to the public, the company issued, without consulting its works council, "instructions" that stipulated, among other things, that employees had to appear for work in their uniforms and wear official identification at chest height. The court found that section 87(1) no. 1 of the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) generally gave the works council the right to be consulted in connection with company regulations governing employee dress. The court ruled that such instructions are invalid if an employer fails to obtain the approval of the works council in advance.
The parties also disagreed as to the validity of a dress code contained in a company-wide works agreement that regulated, among other things, underwear worn under the company uniform, fingernail color and length in the case of female employees and the grooming, facial hair and make-up of male employees. The Higher Labor Court ruled that the parties to a workplace agreement had a duty to respect the right of personality of employees at all times. For that reason, only such workplace rules are permissible as do not unreasonably infringe this right. Applying these principles, the court found that parts of the dress code at issue were unreasonable and therefore invalid. This was the case, for example, of a rule governing the color of the fingernails of female employees. On the other hand, the court did find a rule appropriate that limited the length of fingernails to protect passengers during security checks. This clearly shows the necessity for ensuring that any rules governing the appearance of employees can also be objectively justified.
In addition to the various aspects of the right of personality involved, it is also important to address the possibility of violation of anti-discrimination legislation when drafting a dress code. Rules that are not applied consistently, for example, because they concern only men or women, are permissible only if sufficient reason exists on the basis of objective operational considerations (see section 8(1) of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG)). In the case mentioned above, for example, the court found that rules that govern the hair color of men or prohibit men from wearing artificial hair were invalid. The court reasoned that this would constitute (in addition to unreasonable interference with the right of personality) gender discrimination against male employees. As a result, the court found this rule to be in violation of section 7(1) of the General Equal Treatment Act. On the very same grounds, the Cologne Labor Court (judgment of 5 April 2001 - 12 Ca 8659/10) also found invalid a company rule that required only male cockpit personnel to wear their pilot's hats in the public airport areas. The court found that this also constitutes gender discrimination since there is no obvious reason why this rule should apply only to men.
The cases addressed above show that employers would be well advised to take into account various important issues when considering the introduction of rules governing the appearance of employees. These aspects can be ignored only at the risk of judicial disputes with a company's employees or works council. It is therefore recommended that such aspects be closely examined before introducing such rules.