When red trousers are a "red flag" – Notice of termination effective!

(Judgement of the Regional Labor Court of 21 May 2024 - 3 SLa 224/24)

Repeated disregard of work instructions

In this case, the employer – an industrial company – had stipulated in its house rules that, among other things, production employees should wear red work trousers. Corresponding functional working clothes was made available to the employees concerned. Due to the fact that the colour “red” has a signal effect, the employees are easily recognizable in the production areas which improves occupational health and safety.

Despite being expressly requested to do so, the plaintiff, who was employed in production with assembly activities, including work on the cross-cut saw, refused to comply with this instruction. He repeatedly appeared in black or dark-coloured work trousers instead of the compulsory red work trousers. Even warnings issued did not motivate the plaintiff to comply with the orders. As a result, after another refusal, the employer gave notice of termination observing the applicable notice period.

Aesthetic perception is irrelevant for protective workwear

The plaintiff’s action for unfair dismissal was unsuccessful in both the first and second instance. The notice of termination was effective due to a persistent – unfounded – refusal to comply with justified work instructions.

Although dress codes can affect the employee's general right of personality, in this case only the plaintiff's social sphere was affected. According to established case law, interference in the social sphere can be justified on objective grounds. This was the case here. The red work trousers were permissibly categorized as part of the personal protective work equipment. The employer was able to convincingly demonstrate that the chosen signal colour “red” for the working clothes not only served to ensure work safety and the immediate recognizability of the employees in the production area, but that the uniform working clothes also contributed to maintaining the "corporate identity" within the company. These were legitimate reasons for limiting the plaintiff's personal, aesthetic perception of colour.

It was noteworthy that the plaintiff failed to provide any explanation as to why he so vehemently refused to wear the red work trousers, even at the appeal stage. Particularly in light of the fact that the plaintiff had actually worn the red work trousers in the past and only seemed to have a problem with it when the mandatory dress code was established, the appeal chamber found this incomprehensible. According to the court, he had thus "escalated" a previously unobjectionable employment relationship for no reason and without any further factual explanation. Due to the persistence of the plaintiff's refusal, even a notice for cause – and not just the ordinary notice, which had been issued for social reasons – would have been permissible in this case.

Working clothes is always a contentious issue

"Clothes make the man" – this saying is well known and, personal clothing style has been seen as an expression of free personality development. This should also be lived out as freely as possible in professional life, with the result that employees repeatedly make the permissibility of dress codes and instructions regarding external appearance (e.g. tattoos, piercings) subject of labour court proceedings.

Although dress codes intervene with the general right of personality in accordance with Article 2 of the Basic Law, a precise distinction must be made in each individual case as to the extent of the infringement. Often only the social sphere is affected, so that objectively comprehensible reasons are sufficient to legitimize the dress code. Nevertheless, other fundamental rights may also be affected by dress codes in individual cases – e.g. freedom of religion in case of wearing a headscarf or the principle of equality if dress codes are discriminatory in nature.

Nevertheless, employees should also carefully weigh up whether minor interventions with personal preferences – in this case the wearing of red working clothes – are not acceptable in view of the bigger picture – financial security through paid employment. After all, personal preferences cannot always be reproduced and lived out completely in professional life. Another argument in favour of keeping private life and professional life separate. Even in times when there is a shortage of skilled labour, there are limits to the extent to which personal sensitivities can be protected in working life and employers are not willing to condone unprovoked escalations.