A nursery worker who was told she was showing too much cleavage has lost her sex discrimination claim, after an Employment Tribunal concluded that a male colleague with too many undone shirt buttons would have been treated the same.

According to the Daily Mail, the Tribunal was told that staff at the Bundles of Joy daycare centre in Streatham, south London, were required to wear a ‘conservative’ uniform including a pink polo shirt, black trousers and flat shoes. Reportedly, no polo shirts were available in Latika Lawrence’s size. The Tribunal was told she had “large breasts” and wore large or extra-large bras but that her build was “far from unusual”. Lawrence opted instead to wear a figure-hugging black dress with a scoop neck, which was “quite short”.

The panel concluded that “at times a significant amount of cleavage would be visible”. They noted:

“Because of the nature of the dress, the amount of [her] body that it covered depended on what [Miss Lawrence] was doing. The dress could ride up her legs, making it quite short. It could also ride down on the chest thus appearing quite low-cut, revealing some of [her] cleavage.”

They added that the job of a nursery nurse was an active one and involved bending over.

The nursery had recently been taken over by owner Zara Ahmed following a “disappointing” Ofsted report. She was visited in January 2019 by a council specialist, who commented that Miss Lawrence’s attire was “unprofessional” at a nursery. Mrs Ahmed therefore told Miss Lawrence her dress was “too low cut”. In response, Miss Lawrence raised a grievance and resigned and went on to tell the Tribunal that her boss had actually said her “boobs were too big”. The panel rejected this along with her claims of victimisation and sexual harassment.

In order to be judged as such, direct discrimination is less favourable treatment of someone who has a protected characteristic. This is treating someone differently due to their characteristics when the circumstances are the same. Imposing a dress code policy is perfectly legal when it factors in an employee’s rights. A dress code must not be discriminatory in respect of the protected characteristics in the Equality Act 2010 for age, disability, gender reassignment, religion or belief, sex, or sexual orientation.

Employment judge Daniel Dyal said the comment was “entirely reasonable” and that the “conventional but conservative” uniform was “gender neutral” and the nursery would have applied the same standards to a man.