Do pub staff have to wear underwear?

News hit the headlines this week after a woman claimed she was "fired" from a pub for not wearing a bra.

The 22-year-old said she had been let go after “inappropriate sexual remarks were made towards her at work and her manager told her not to return unless she wore a bra”, Metro ​reported. The Bird & Beer in Beverley, East Yorkshire, has since denied the allegations, and claimed no one has been dismissed.

The issue has raised a series of questions – as well as a few eyebrows. Mainly, can underwear be part of a pub’s dress code?

The Morning Advertiser​ has spoken to solicitor Melanie Morton from Nelsons to get to the bottom of the issue.

Q: Does the law say anything about whether businesses can dictate what underwear staff can or can’t wear?​

A:​ I think the main point to say is employers are entitled to impose a dress code provided it's not discriminatory under the Equality Act so, as far as possible, they need to apply stipulations neutrally so no one is singled out. And, not just women against men, but also race and religious backgrounds.

It is entirely normal to have a dress code, particularly in customer-facing roles. What we would always say is that it’s fine to have a staff uniform and appearance guidelines, provided you apply them equally where possible.

That is not really going to be possible when you've got an issue around underwear.

Obviously, there is nothing in the law that requires a woman to wear a bra – and lots of women choose not to wear one.

Dress codes have to reasonable, they should relate to the job the person is doing.

I think what we would say to pubs is, yes, of course you can have a dress code, but you need to apply the general rules as equally as possible.

It is fine to say people should keep themselves clean and smart but when you are stipulating underwear, you're potentially going a step too far.

Q: If someone had a stipulation in a dress code that said women had to wear a bra, could that been seen as discriminatory?​

A:​ I think it potentially could. The pub would have to demonstrate why that was necessary from a business perspective and what similar rule they were applying to men to meet that business aim. 

Lots of places have a uniform but, in the absence of a uniform, you can require people to dress themselves in a professional manner. Also, from a health and safety perspective, you could have guidelines around hairnets and jewellery, as long as you are applying that across the board.

Q: What advice would you give to pubs?​

A:​ People should have the freedom to dress how they want beneath their clothes.

A serious breach of a dress code could lead to a dismissal in principle, but it is unusual to sack someone solely on the basis on the underwear they choose, or don't choose, to wear.

It's more important that their behaviour and performance is appropriate for the employment setting, and I think that's what they should focus on.

Have an informal chat if you don't like the way someone is presenting themselves, but be very careful about what aspect they are challenging. If it is a gender-specific thing, take advice first. 

Q: What action could be taken if a pub did dismiss someone on these grounds?​

A:​ If a publican is relying solely on state of dress or appearance as a reason for dismissal, they may face a challenge for unfair dismissal.

The main reasons for fair dismissal are conduct, capability, redundancy.

An employer relying on a breach of dress code would have to show it was sufficiently serious. In the absence of that severity they could face an unfair dismissal claim and, of course, if it was something that the employee deemed discriminatory, they could face a discrimination claim on top of an unfair dismissal claim.

Q: Should pubs make sure staff are aware of policies?​

A: ​Communicating dress code and appearance guidelines should be part of the induction process. Staff should be aware of any policies when they join.