In the most recent case highlighting potential issues regarding dress code policies, a former actress, Nicola Thorp, was told on her first day working as a temp receptionist that she must change out of her flat shoes and wear 2-4 inch high heel shoes. When Ms Thorp complained about the dress code and highlighted that male colleagues were not required to wear high heel shoes she was sent home without pay.
Her employer defended the dress code by stating that their policies ensure staff are dressed consistently and have appropriate style of footwear.
The law prohibits discrimination on the grounds of sex
Although there is no specific law on dress codes at work, the Equality Act 2010 prohibits discrimination on the grounds of a protected characteristic, which include: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
It is common for men and women to be required to dress differently at work, for example male employees are frequently required to wear a tie whilst their female colleagues not being subject to the same requirement. These differences have historically resulted in a number of sex discrimination cases. Those cases have established how an Employment Tribunal must approach such cases: most relevantly they will not find a dress code discriminatory just because of differences between the sexes. The Tribunal is concerned by the overall effect of the rules and starts by asking itself whether members of one sex have been treated less favourably than others. Therefore requiring men to wear a tie is not discrimination provided that female employees are required to meet a comparable standard of smartness.
What should employers do?
ACAS has issued guidance to employers and the key points include:
- Employers must avoid unlawful discrimination in any dress code policy
- Employers may have health and safety reasons for having certain standards
- Dress codes must apply to both men and women equally, although they may have different requirements
- Reasonable adjustments must be made for disabled people when dress codes are in place.
Any dress code policy should set out reasonable standards of dress and appearance. It should be non-discriminatory and apply to both men and women equally.
Separate rules for men and women are permissible provided they apply the same standards equally.
The ACAS guidance emphasises that it is good practice for employers to consider the reasons for any dress code when drafting or updating a policy.
How can employers avoid discriminating?
Dress codes are lawful provided they are applied evenly.
In this recent case, no claim has been made to an employment tribunal. If a similar case was submitted to a tribunal the employer would be required to justify why women had to wear high heels and why there was no similar requirement for men. This may prove difficult to do.
A tribunal will also look at whether there is an objective reason for wearing high heels, such as for the better performance of the job.
In this particular case we believe that a female employee should be able to show that a requirement to wear high heels amounts to less favourable treatment and that the employer would have difficulty justifying the requirement as a receptionist would look just as professional wearing flat shoes.
If you would like to discuss this issue or any other employment matter please contact a member of our employment team.
