4th October 2017
High heels have been hitting the headlines of late. Although workplace dress codes are by no means a new issue for employers, they certainly became a more high profile one when, in December 2015, Nicola Thorp reportedly turned up for her first day at work wearing flat shoes, only to be sent home without pay for refusing to wear high heels. Thorp subsequently created an online petition entitled ‘Make it illegal for a company to require women to wear high heels at work’ which attracted in excess of 150,000 signatures. And so the ball got rolling. Parliament had to respond.
There followed a string of examples of allegedly discriminatory dress code requirements issued to female employees, and a parliamentary report which called for a review of equality legislation. The publicity that has surrounded this issue of late highlights for employers the danger of imposing a dress code that could be perceived to be discriminatory. So what ought an employer to do?
Employers frequently require employees to observe dress codes or appearance requirements at work, with a view to preserving the employer’s professional image or fulfilling health and safety requirements. Employers are, of course, entitled to promote certain standards of appearance at work, and it can be particularly important within certain sectors that they do so. Workplace dress codes can, nonetheless, give rise to claims of unlawful discrimination.
The argument is that imposing a requirement for a woman to wear high heels at work amounts to sex discrimination because a man would not be required to do the same. However, in the 1996 case of Smith v Safeway Plc, the Court of Appeal found that imposing different dress code requirements upon men and women will not amount to sex discrimination where the dress code enforces a conventional standard of appearance upon both sexes and, taken as a whole, neither gender is treated less favourably than the other. This means that placing a particular dress code requirement upon one sex but not the other does not necessarily mean that there is discriminatory treatment.
But it is not only allegations of sex discrimination that can arise from workplace dress codes. If, for example, a man undergoing gender reassignment is prevented from wearing a dress, but women within the same workplace would be permitted to do so, this could amount to unlawful discrimination because of gender reassignment. Equally, if a Jewish man faced a restriction on headwear such that he could not wear his kippah, then the employer could expose themselves to an allegation of indirect discrimination on the grounds of religion or belief. Alternatively, if a particular dress code requirement placed a disabled employee at a disadvantage then the employer could face a claim for disability discrimination. The list of examples could go on…
The outcome of these cases often depends upon whether the requirement of the dress code in question can be objectively justified as a proportionate means of achieving a legitimate aim. It is often a careful balancing act between the employer’s aims in having a dress code in place, and the impact upon the employee. This certainly doesn’t mean that employers can’t specify certain dress code requirements, just that those requirements must be carefully judged and properly implemented. The danger comes where there is no legitimate reason for requiring people to look a particular way, where dress code requirements are unreasonable or disproportionate, and where requirements place those with protected characteristics at a disadvantage.
Employers should carefully consider any dress code that they intend to impose and be able to justify the reason for it. Dress codes and appearance requirements are best formalised in a well-written, non-discriminatory policy that sets out not just the employer’s expectations, but also the reasons for the dress code being in place. Consulting with employees over any proposed dress code may ensure that the code is acceptable to both the employer and its employees. Once agreed, a dress code should be communicated to all employees and applied fairly. Employers should be willing to consider exceptions where an employee feels disadvantaged by reason of a protected characteristic and keep their policy under regular review.
For further information please contact our Employment Team on 01256 844888 or email firstname.lastname@example.org
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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