In principle, the employer has the right to issue instructions to its employees regarding the manner in which their work is to be carried out. This can also apply to clothing.
Good to know:
The right to issue instructions, also known as the right to issue directives, has its legal origins in Section 106 of the German Trade Regulation Act (GewO) and states that employers have the right to issue instructions regarding the content, place and time of work performance at their reasonable discretion.
However, the employer may not arbitrarily issue dress codes. They must have a legitimate interest in doing so.
Legitimate interests of the employer can be, for example
- Protection of employees: in some professions, e.g. construction or chemical industry, certain protective clothing is required for safety reasons.
- Hygiene: In industries where food is produced, it may be necessary for hygienic reasons.
- Representation: In some companies, it may be important for image reasons.
The employer’s right to issue instructions and its legality is opposed to the employee’s general right of personality under Article 2 (1) of the German Constitution.
How far does the right to issue instructions go?
As is so often the case, it depends on the individual case:
Can the employer prescribe the employee’s underwear?
The employer may prescribe the color of the underwear if otherwise a uniform appearance is not guaranteed or the clothing is too sexy. For example, if an employee is wearing a red or black bra that is clearly visible under a white T-shirt, the employer can demand that only white or skin-colored underwear is worn (see case reference 3 TaBV 15/10).
Red or black work trousers?
The latest decision on the subject of the dress code concerns a fitter who lost his job after he repeatedly defied the company’s house rules by wearing black work trousers instead of red ones. He had always worn the red work trousers in previous years.
After he continued to wear black trousers to work despite requests to the contrary and two warnings, the employer gave the fitter ordinary notice of termination. Both the Solingen Labor Court (case reference: 1 Ca 1749/23) and the Düsseldorf Higher Labor Court (case reference: 3 Sa 224/24), which was called upon to hear the appeal, were of the opinion that the employer’s interests prevailed in this case and considered the dismissal to be lawful.
The judges of both instances cited occupational safety and corporate identity as reasons. The fitter’s job included working with chop saws and cordless drills and therefore required special safety precautions. In addition, the color red was to ensure the visibility of the employees in the production hall in order to avoid possible accidents with the forklift trucks operating there. A uniform appearance of the company was also an important factor in maintaining the corporate identity.
The plaintiff could not provide any reasons other than his aesthetic perception to support his interests. In particular, since he had previously worn the red work trousers for years without complaint, the plaintiff’s aesthetic perception was not sufficient to justify a rejection of the red work trousers.
According to the courts, the instruction to wear red trousers at work did not disproportionately infringe the employees‘ self-determination and did not interfere with their privacy. The right to issue instructions was therefore exercised within the permissible framework and the balance of interests was not in the plaintiff’s favor.
Conclusion:
The employer may prescribe the clothing of its employees if it has a legitimate interest in doing so and the dress code is appropriate.
However, it is important that the dress code is set out in a company agreement or work regulations and that it does not unreasonably interfere with the personal freedom of employees.
