Case 40: Smith v Safeway

(C) [1996] IRLR 456

SMITH (applicant/respondent) v.
SAFEWAY PLC (respondents/appellants)

"irlr"

600

Sex discrimination


611

Direct discrimination


613

Discrimination against men


636

Discrimination by employers - dismissal


637

Discrimination by employers - detriments

Sex Discrimination Act 1975 sections: l(l), 6(2)

The facts:

Mr Smith was employed as a delicatessen assistant from August 1988 until April 1992. He was dismissed because his ponytail grew too long to be kept under his hat. This was contrary to Safeway's rule concerning appearance for male delicatessen staff, which specified: "Tidy hair not below shirt-collar length. No unconventional hairstyles or colouring" The comparable rule for female staff referred to: "Tidy hair . . . Shoulder-length hair must be clipped back. No unconventional hairstyles or colouring." It was accepted that no questions relating to standards of hygiene arose in the case of Mr Smith.

An industrial tribunal rejected Mr Smith's complaint of sex discrimination. Noting that the employers were seeking to promote a "conventional" image and that they were entitled to have a dress and appearance code, the tribunal concluded that "it was not discriminatory to have different lengths of hair for men and women". In so finding, the tribunal purported to rely upon Schmidt v Austicks Bookshop Ltd. in which the EAT said that where there were rules restricting wearing apparel and governing appearance which applied to both men and women, "although obviously, women and men being different, the rules in the two cases were not the same," there was no discrimination since "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." The industrial tribunal in this case accepted the employers' argument that the treatment accorded to Mr Smith was not "less favourable" than the treatment which would have been accorded to a woman, since the law permits different rules to be applied to men and women, provided they enforce a common standard of smartness if read as a whole.

The EAT [1995] IRLR 132, by a majority decision (Pill J dissenting) held that it was contrary to the Sex Discrimination Act to make a distinction as to the length of hair permitted men and women. The lay members took the view that the employers' rules were capable of being applied to both men and women so as to take account of convention, without placing a restriction on hair length for men only. The lay members purported to distinguish the decision in Schmidt on grounds that a restriction on hair length, as opposed to clothing, extended beyond working hours.

The Court of Appeal (Lord Justice Leggatt, Lord Justice Peter Gibson, Lord Justice Phillips) on 16 February 1996 allowed the appeal and restored the decision of the industrial tribunal.

The Court of Appeal held:

"irlr" {611} {636}

The majority of the EAT erred in finding that the employers had discriminated on grounds of sex against the appellant when they dismissed him because the length of his hair contravened the employers' rules for the appearance of male staff, when such hair length would not have led to a woman being dismissed. The EAT majority had wrongly held that a distinction between men and women as to the length of hair permitted was self-evidently less favourable and sex discriminatory.

There is an important distinction between discrimination between the sexes and discrimination against one or other of the sexes. Discrimination is not failing to treat men and women the same. 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.

An appearance code which applies a standard of what is conventional applies an even-handed approach between men and women, and not one which is discriminatory. The principle to be applied is that derived from Schmidt v Austicks Bookshops Ltd: rules concerning appearance will not be discriminatory because their content is different for men and women if they enforce a common principle of smartness or conventionality, and taken as a whole and not garment by garment or item by item, neither gender is treated less favourably in enforcing that principle.

The conventional standard of appearance is the appropriate criterion to be applied when considering whether a requirement operates unfavourably with regard to one or other of the sexes. A code which made identical provisions for men and women but which resulted in one sex having an unconventional appearance would have an unfavourable impact on the sex being compelled to appear in an unconventional mode, such as a rule which required all employees to wear lipstick.

A package approach to the effect of an appearance code necessarily follows once it is accepted that the code is not required to make provisions which apply identically to men and women. The requirement of one particular item of a code may have the effect that the code treats one sex less favourably than the other, but this has to be considered in the context of the code as a whole.

This approach is to be applied both to dress and to more permanent characteristics such as hairstyle. That a restriction extends beyond the workplace is a factor to be taken into account in considering whether or not the rule is discriminatory and has been applied in a discriminatory fashion, but does not affect the test itself.

An appearance code can be challenged before an industrial tribunal on the ground that it operates unfavourably towards the applicant on grounds of his or her sex, for example because of the impact on comfort or health, or the degree of restriction imposed on the freedom to govern one's own appearance. A tribunal has to consider interrelated questions of whether the restriction, such as on the length of hair being worn by men, could properly be justified on the ground that it represents a requirement of conventional appearance, and whether the restriction, when considered in the context of the code as a whole, results in men being treated less favourably than women.

There is no rule of law that it can never be discriminatory to require men to wear their hair short. However, in allowing an appeal in the present case, the majority of the EAT erred in law in substituting their own view of the facts for that of the industrial tribunal. It was not perverse for the industrial tribunal to conclude that it was not discriminatory for the employers to ban unconventionally long hair for men when such length of hair for women was not thin conventional.

Cases referred to:
Schmidt v Austicks Bookshops Ltd [1977] IRLR 360 EAT
Burrett v West Birmingham Health Authority [1994] IRLR 7 EAT; 3.3.94 CA
Hayward v Cammell Laird Shipbuilders Ltd [1988] IRLR 257 HL
Rewcastle v Safeway plc, 22482/89 IT
Piggott Brothers & Co Ltd. v Jackson [1991] IRLR 309 CA
Boychuk v H J Symons Holdings Ltd [1977] IRLR 395 EAT

Appearances:
For the Appellants:
PATRICK ELIAS QC and CHRISTOPHER JEANS, instructed by Park Nelson Thompson Quarrell, London agents for Cartwrights
For the Respondent:
PETER BIBBY, instructed by the Free Representation Unit

  1. LORD JUSTICE PHILLIPS: 'Get your hair cut' is an instruction that I suspect most men have heard at some time, whether at school, in the armed forces or in the workplace. Usually the instruction is given not on ground of safety nor of hygiene, but simply on grounds of appearance. Can such an instruction by an employer be reconciled with the requirement of the Sex Discrimination Act 1975? That is the basic question raised by this appeal.
  2. The facts
    The appellants, Safeway, operate a well-known chain of supermarkets. Their business is a competitive one, and they consider that the appearance of their staff can have an important effect on attracting or repelling customers. For this reason they have, for a number of years, required their staff to comply with a code that governs their appearance. This they promulgate in a leaflet entitled 'Look how you should look'. Those working in the food department are required to wear a uniform which differs in detail dependent on whether the wearer is male or female. Male staff are additionally required to comply with the following directions:
    'Freshly shaven, moustaches which do not extend beyond the lip line are allowed. No unconventional jewellery.
    Tidy hair not below shirt-collar length. No unconventional hairstyles or colouring' For female staff the following directions apply:
    'Make-up should be simple and kept to the minimum.
    Jewellery must be discreet and conventional.
    Your hair should be tidy. Shoulder length hair must be clipped back. No unconventional hairstyles or colouring'
  3. The respondent, Mr Smith, took up employment with the East Grinstead branch of Safeway on 8 August 1988. Throughout his time, he worked as an assistant in the delicatessen department. At that time, his hair length complied with the Safeway's code, of which he was aware. He was, however, unhappy with the restriction which this imposed. While initially he complied reluctantly with this, a stage was reached when he was no longer prepared to do so. I need not go through the history of protests, grievance meetings and disciplinary procedure, but it is not suggested the manner in which Safeway acted was procedurally incorrect or unfair. Mr Smith was dismissed on the ground of his refusal to comply with Safeway's requirement as to the length of hair on 7 April 1992.
  4. On 5 November 1992 he applied to an industrial tribunal for compensation on the ground that his dismissal had violated the provisions of the Sex Discrimination Act 1975. The relevant provisions are s.1(1)(a) and 2(1) which, 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 -
    (a) on the ground of . . . sex he treats [him] less favourably than he treats or would treat a [woman] . . .' Section 6 provides that it is unlawful for an employer to discriminate against a male employee by dismissing him.
  5. The decision of the industrial tribunal
    The industrial tribunal dismissed Mr Smith's application. They held: (1) that a retail store is entitled to have a dress and appearance code; (2) the appellant does not have to make identical provision in relation to men and women; and (3) while the rules governing both dress and appearance for both men and women were different rules, they were nevertheless equally rigorously applied in both cases, and it was not discriminatory that they made different provisions in relation to the length of hair for men and women.
  6. The decision of the Employment Appeal Tribunal
    Mr Smith appealed successfully to the Employment Appeal Tribunal. Judgment was delivered on 9 December 1994. The chairman, Pill J. dissented from the decision of the lay majority. The reasoning behind their decision appears, as it seems to me, from the following passage ([1995] IRLR 132 at p.134, 18-22):
    'The lay members of thus tribunal have no difficulty in holding that the treatment was less favourable and self-evidently so. The requirement laid down by Safeway for the appearance of meat department and delicatessen staff with respect to hairstyle are capable of being applied to both men and women, in such a way as to take account of convention . . . 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 hairstyle which, in the case of a ponytail, is specifically capable of being treated the same for both men and women.
    Unlike other requirements as to appearance - uniform, hairstyle, jewellery and the like - a restriction on hair length has effect not only during working hours but 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.'
    Pill J gave the following reason for his dissent at p.135,24:
    '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 hairstyle. Providing 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 ponytail.'
    Safeway now appeal against the decision of the appeal tribunal. On their behalf Mr Elias QC contends that the appeal tribunal, in applying the test of law that is appropriate, differed from the conclusion of the industrial tribunal as to the result when this test was applied to the facts. This, says Mr Elias, amounts to allowing the appeal on the ground of error of fact, which in the absence of a finding that the industrial tribunal's decision was reversed, was not open to the appeal tribunal.
  7. In seeking to uphold the decision of the appeal tribunal, Mr Bibby for Mr Smith contends that the legal principle that the industrial tribunal applied was not one that could properly be applied to the facts of this case. What was that principle? Both the industrial tribunal and the appeal tribunal purported to apply the approach adopted by the appeal tribunal in Schmidt v Austicks Bookshops Ltd [1977] IRLR 360. In Schmidt, a female employee complained that the requirement that she should wear a skirt and not trousers whilst serving the public was unlawful discrimination on the grounds of sex. It was agreed that men would not be asked to wear skirts. Giving the judgment of the tribunal, Phillips J stated:
    '. . . 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 earrings 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 of 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.'
  8. Recently in Burret v West Birmingham Health Authority (3 March 1994, unreported), 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, said:
    '. . . we are not aware of any doubt having been cast upon its authority, or of any particular perceived need for it to be reconsidered.'
  9. Mr Elias for Safeway, in his helpful skeleton argument, has submitted that the principle to be derived from Schmidt is as follows. Rules concerning appearance will not be discriminatory because their content is different for men and women if they enforce a common principle of smartness or conventionality, and taken as a whole and not garment by garment or item by item neither gender is treated less favourably in enforcing that principle.
  10. Mr Bibby has not challenged the submission that this 10 correctly states the principle to be derived from Schmidt, but he submits that that principle has become unsound in law as a result of changes in society and that, in any event, the principle does not extend to the facts of this case. Mr Bibby submits, and submits rightly, that the court should apply the 1975 Act in such a way as to give full effect to the relevant Directive of the Council of Europe, which is the Equal Treatment Directive 76/207. The relevant provision of that Directive requires that there shall be no discrimination whatsoever. As I understand it, Mr Bibby submits that conditions of employment which place restrictions on men which do not apply to women, or vice versa, are unlawful.
  11. {611} {636}
    There is an important distinction between discrimination between the sexes and discrimination against one or other of the sexes. It is the latter that is forbidden by the Sex Discrimination Act 1975. Discrimination is defined as being treated less favourably. In my judgment, this is plainly the meaning of discrimination in Directive 76/207, and the 1975 Act fully reflects that Directive. In many instances, discrimination between the sexes will result in treating one more favourably than the other, but this will not necessarily be the case. 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. That is the starting point of the reasoning adopted in Schmidt, and in my judgment it is plainly correct.
  12. The next element of the principle in Schmidt is that one considers the effect of a code governing appearance overall, not item by item. As to this, Mr Bibby has submitted that a package approach to a code governing appearance is unsound; that each element in the code has to be examined separately to see whether that element is discriminatory. He has referred us to Hayward v Cammell Laird Shipbuilders Ltd (No.2) [1988] IRLR 257. That was a case which turned on the particular wording of a different statute enacted to give effect to a different European Directive dealing with pay, and I have not found it helpful in the present context.
  13. {611} {636}
    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 over-all context of the code as a whole.
  14. Mr Bibby submits that if such an approach is legitimate, it must be confined to dress and cannot be extended to hair. He makes the particular point that employees only have to comply with requirements as to dress while they are in the workplace, but can change their clothes so as to dress as they please once they leave work. As to this, I accept Mr Elias's argument that, while this may be a relevant consideration when applying the appropriate test, it does not affect the test itself Appearance depends in part on ephemera: clothes, rings and jewellery worn; but it depends also on more permanent characteristics: tattoos, hairstyle, hair colouring and hair length. The approach adopted in Schmidt can in my judgment properly be applied to both types of characteristic.
  15. The next element of the approach in Schmidt is the assumption that a code which applies a conventional standard of appearance, is not, of itself, discriminatory. This also Mr Bibby challenges. He has adopted part of the reasoning of the Newcastle-upon-Tyne Industrial Tribunal in Rewcastle v Safeway 22482/89 IT. That was a case of very similar facts and issues where the tribunal reached the opposite decision to the tribunal in the present case. The passage in question reads:
    '. . . 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.'
    I am unaware of any justification for those last few words.
  16. {611} {636}
    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 reason 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 Mr Elias 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 Mr Bibby, and he accepted that such a requirement would operate unfavourably towards men. The reason for that is that the appropriate criterion to be applied when considering that question is: what is the conventional standard of appearance? Indeed, it seemed to me that Mr Bibby 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.
  17. The final, and it seems to me the most important, element of the approach in Schmidt is that, looking at the code as a whole, neither sex must be treated less favourably as a result of its enforcement. This element of the principle is plainly correct. So it follows that I consider the approach recommended by Phillips J in Schmidt to be as sound in law as it was when he enunciated it.
  18. When an appearance code is challenged before an industrial tribunal it is likely to be on the ground that, having regard to the relevant facts, it operates unfavourably towards the applicant on grounds of his or her gender. Such an attack will require the tribunal to make an appraisal of the material facts. Challenge may be made on the grounds that the code operates unfavourably for one sex for a number of different reasons. I have already mentioned the potential impact of such a code on comfort or health. In most of the cases that we have seen, however - and I would pay tribute to the industry of Mr Bibby which has resulted in researches that have stretched not merely beyond the Channel but beyond the Atlantic for the number of factual examples that have been given to us - the ground of attack seems to be simply the degree of restriction imposed on the freedom to govern one's own appearance. The present case appears to be such a case. The complaint that Mr Smith makes of the Safeway code is that it removes his freedom to govern his own appearance by growing his hair to the length that he chooses.
  19. In applying the approach in Schmidt, as I think they did, the industrial tribunal had to consider interrelated questions of whether the restriction on the length of hair being worn by men could properly be justified on the ground that it represented a requirement of conventional appearance, and whether the restriction imposed by that item of the appearance code, when considered in the context of the code as a whole, resulted in men being treated less favourably than women. It is implicit in their decision that they answered the first question in the affirmative and the second in the negative.
  20. The Employment Appeal Tribunal can only reverse a decision of the industrial tribunal where that decision has resulted from an error of law or where the tribunal, in applying the law to the facts, has reached a conclusion that was perverse: see Piggott Brothers & Co Ltd v Jackson and others [1991] IRLR 309 at p.312, 17. In the present case, the appeal tribunal did not question the validity of the approach in Schmidt. They differed, however, as to the result when that approach was applied to the facts, in that they stated:
    '. . . a need to present a conventional appearance at work is already met by the standards laid down as to hairstyle which, in the case of a ponytail, is specifically capable of being treated the same for both men and women.'
  21. In allowing the appeal on this ground, the majority of the appeal tribunal were substituting their appraisal of the facts for that of the industrial tribunal. I agree with the comments of Pill J that it was not for the appeal tribunal to substitute its own view of what was conventional or the merits of a ponytail. The only basis upon which the appeal tribunal could properly reverse the industrial tribunal on the basis of the facts was if they concluded that the industrial tribunal had been perverse in deciding that a restriction on the length of men's hair did not result in a code treating men less favourably than women. They did not so hold, rightly in my view.
  22. I can appreciate the argument that the nature of the restriction on hair length, applying as it does only to men and governing their appearance both at work and away from work, so unbalances the treatment of men and women under the code as to render the treatment of men less favourable than that of women, but I do not consider the rejection of such an argument to be perverse. The code imposes restrictions on the hairstyles of both men and women which affect their appearance both at work and away from it. one has only to walk through Camden Lock market on a Saturday afternoon to see a variety of unconventional hairstyles adopted by both men and women, involving cutting their hair or shaving part of the scalp, that change the appearance in a manner that is not ephemeral. Length of hair is but one potential feature.
  23. {611} {636}
    The issue in this case is not whether we agree, or whether the appeal tribunal should have agreed, with the conclusions of fact of the industrial tribunal, but whether those conclusions were perverse. In my judgment they were not and the appeal tribunal should not have reversed the decision of the industrial tribunal. This is not, as Mr Bibby suggests it would be, to lay down a rule of law that it can never be discriminatory to require men to wear their hair short, but is simply to say that in this case it was not perverse for the industrial tribunal to hold that a code containing the requirement that men's hair should be collar-length was not discriminatory on the facts of that case.
  24. For these reasons I would allow this appeal.
  25. LORD JUSTICE PETER GIBSON: In relation to appeals from the Employment Appeal Tribunal this court, as a second-tier appellate court, is primarily concerned with the correctness of the industrial tribunal's decision. Because appeals from the industrial tribunal are limited to those on points of law, in the absence of a misdirection in law the industrial tribunal's decision must stand, unless it is shown to be one which no reasonable tribunal could have reached.
  26. The question which the industrial tribunal in the present case was required to answer was whether the employer discriminated against the employee by treating him less favourably on the ground of sex than it treated, or would treat, a woman employee. That question it addressed in its admirably clear decision. In concluding unanimously that there was no discrimination, the industrial tribunal correctly had regard to the decision of the Employment Appeal Tribunal in Schmidt v Austicks Bookshops [1977] IRLR 360. That case established that rules governing appearance are not to be regarded as discriminatory merely because those rules are not identical in content for both sexes, and that such rules are not discriminatory if, taken as a whole and not item by item, the one sex is not less favourably treated than the other.
  27. Mr Bibby emphasised that the Schmidt case was not one which related to length of hair but merely to dress. He pointed out that a rule as to hair, unlike a rule as to dress, is one which affects the private life of the employee beyond the workplace. That is a factor to be taken into account in considering whether or not the rule is discriminatory and has been applied in a discriminatory fashion. Essentially the question whether there was less favourable treatment for the male employee was one of fact and degree for the industrial tribunal to determine. In Boychuk v H J Symons Holdings Ltd [1977] IRLR 395, a case concerned with whether an employer was entitled to dismiss a female employee for wearing a lesbian badge, the late Phillips J said, at pp.395 and 396:
    'This is the kind of problem which arises from time to time in relation to the behaviour of employees which for one reason or another employers disapprove of and wish to have changed - usually in relation to dress, hair, sexual behaviour, and so on. There are quite a number of cases reported. They do not enshrine any principle but they are illustrations of the approach of industrial tribunals to this problem. But what they do clearly indicate, as one would expect, is that such questions are largely ones of fact, not easy to decide, and which have to be decided according to all the circumstances of the particular case. Under the statute [Trade Union and Labour Relations Act 1974] the decision is entrusted to an industrial tribunal as the tribunal of fact, being so composed as to be suitable to decide questions of this kind and described in the Court of Appeal as having the characteristics of an industrial jury.'
    I add the comment that the industrial tribunal is equally well suited to decide similar questions under the Sex Discrimination Act.
  28. Phillips J at p.396 went on to say:
    'What is necessary in a case of this kind, and what the industrial tribunal has to look for, is the striking of a balance between the need of the employer to control the business for which he is responsible, in the interests of the business itself - and after all, it is upon its continued prosperity that everybody's interests depend - a balance between that need, on the one hand, and the reasonable freedom of the employee, on the other. How that will be done in different cases will depend very much on the circumstances and the facts.'
  29. {611} {636}
    In my judgment, in the circumstances of the present case, the industrial tribunal was plainly entitled to reach the conclusion that it did. The employer's rules for men and women, although differing in detail, possess as a common feature requirements as to appearance that excluded the unconventional. The employer wished to present a conventional image for the sound commercial reason that that is what its customers wanted. The rules were applied rigorously both for men and for women. The industrial tribunal was entitled to conclude that the employer, operating as it 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.
  30. In my judgment, the industrial tribunal was plainly not perverse in its conclusion and it was impermissible for the majority of the Employment Appeal Tribunal to substitute their own view for that of the industrial tribunal. I would emphasise what Pill J said, that the industrial tribunal's decision if upheld does not mean that employers have a general right to dismiss men for wearing their hair long.
  31. For these, and the reasons given by my Lord, I too would allow this appeal.
  32. LORD JUSTICE LEGGATT: The majority of the Employment Appeal Tribunal substituted their own finding of fact for the industrial tribunal's finding of fact that under the respondents' code the appellant was treated no less favourably than were the respondents' female employees. That the majority had no power to do. They also raised a doubt whether they were applying the law correctly when they said that a ponytail 'is specifically capable of being treated the same for both men and women.'
  33. {611} {636}
    Discrimination consists not in failing to treat men and women the same, but in treating those of one sex less favourably than those of the other. That is what is meant by treating them equally. If men and women were all required to wear lipstick, it could be men who would be discriminated against. 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.
  34. We are not deciding, as my brother Phillips has emphasised, that it can never be discriminatory to require men to wear their hair shorter than women, but merely that it was open to this industrial tribunal to reach the conclusion that they did, and that the approach of the majority of the Employment Appeal Tribunal was impermissible.
  35. The appeal will be allowed and the decision of the industrial tribunal restored. No request under Article 177 of the Treaty of Rome for a preliminary ruling of the European Court of Justice would be appropriate, and in the exercise of our discretion, we decline to refer any question.