Smith v Safeway plc [1996] ICR 868

In brief

Smith v Safeway plc [1996] ICR 868 is the Court of Appeal authority restoring the 'balanced package' approach to gender-differentiated appearance codes established in Schmidt v Austicks Bookshops Ltd [1978] ICR 85. The Court held that an employer's appearance code is not discriminatory under s.1(1)(a) of the Sex Discrimination Act 1975 provided it applies a conventional standard of appearance even-handedly to both sexes, assessed as a whole rather than rule by rule.

Key provisions

• smith-ca-1996-p1 — Balanced-package assessment: An appearance code must be assessed as a whole, not item by item. Different rules for men and women are permissible if the overall package applies a conventional standard evenhandedly to both sexes.
• smith-ca-1996-p2 — Conventionality as the criterion: The operative test is whether the code applies conventional standards of appearance. A code excluding unconventional presentation for all staff meets the test; the specific content of 'conventional' may differ for men and women reflecting contemporaneous norms.
• smith-ca-1996-p3 — Appearance codes extend beyond clothing: The balanced-package principle from Schmidt, though arising in a clothing context, applies equally to more permanent physical characteristics such as hair length, hair style and tattooing.
• smith-ca-1996-p4 — No less favourable treatment overall — the comparator: Discrimination consists in treating one sex less favourably than the other; it does not require identical treatment. Where the rules, taken as a whole, do not result in men being treated less favourably than women (or vice versa), there is no breach of s.1(1)(a) SDA 1975.
• smith-ca-1996-p5 — Industrial tribunal fact-finding — primacy and perversity threshold: Whether a particular rule or code treats one sex less favourably is a question of fact and degree for the industrial tribunal. The EAT may only interfere on an error of law or a finding that is perverse.
• smith-ca-1996-p6 — Employer's legitimate image interest: An employer has a legitimate commercial interest in presenting a conventional image to customers. Enforcing an appearance code to that end is not inherently in conflict with the SDA 1975, provided the code itself is non-discriminatory.

When relevant

Dress code and appearance policy review, particularly where policies impose gendered standards that may disadvantage trans, nonbinary, or gender non-conforming employees. Referenced as historical precedent that has been narrowed — modern policy should apply proportionality rather than rely on the 'equivalent conventionality' approach. Relevant to wizard test scenarios involving dress codes.