Dress Code Dilemmas: new guidance on discriminatory dress codes published

It is now some two years since the events we have come to know as “Heel-gate” when in 2016, a temp called Nicola Thorp was required to wear high heels at work. Ms Thorp was sent home without pay for not complying. She commented about the issue on her social media and the story consequently took the media by storm, resulting in a petition calling for a ban on such requirements which gained 152,000 signatures.

The Women & Equalities Commission (WEC) subsequently published a report in January 2017 called “High Heels and Workplace Dress Codes” which recommended that the government produce some guidance on dress codes in the workplace. The WEC report concluded that the high heel requirement can be damaging to female workers’ health and well-being, with some dress codes making women feel “uncomfortable” and “sexualised”.

In April 2017, the government responded that existing legislation (i.e. the Equality Act 2010) provides sufficient scope for employees who are discriminated against. Nicola Thorp, it is reported, rather eloquently described this as a “cop out” at the time.

However, it was understood in April 2017 that the government was working closely with the Advisory, Conciliation and Arbitration Service (Acas), the Health and Safety Executive (HSE) and the Equality & Human Rights Commission (EHRC) to produce guidance to improve employers’ “awareness” of this issue. The guidance was touted as aiming to ensure that women are not held back by outdated attitudes and practices and that the guidance would take into account controversial dress code practices identified by the Joint Committee relating to ‘high heels and footwear, make-up, manicures, hair (colour, texture, length and style), hosiery, opacity of work wear, skirt length and low-fronted or unbuttoned tops’.

New guidance published

On 18 May 2018 the Government Equalities Office published the guidance “Dress codes and sex discrimination – what you need to know” aimed at employers who “set dress codes” and “employees and job applicants who may have to abide by them”. It states that it is to explain the law on dress codes in workplaces such as offices, hotels, airlines, temporary work agencies, corporate services, the retail sector and in hospitality “especially in bars, restaurants and clubs (not an exhaustive list).

The guidance, as with the government response of April 2017, states that the Equality Act 2010 sets out the legal framework relating to sex discrimination and harassment but that it is ultimately for the courts to decide, on the specific circumstances of a case, whether a practice is unlawful.

Are you allowed to tell your employees what to wear and how to look?

Yes. Employers are allowed to set standards of dress and appearance but these must not discriminate against certain employees.

Your business requires men to wear a suit and women to wear skirts. Women must also wear make-up and high heels. Should you be concerned?

Yes, you should not be singling out or discriminating against a particular group of people. Here the dress code is different according to gender and so may amount to sex discrimination. You need to consider whether the restrictions on what men can wear are equivalent. It may be less favourable treatment to require the women to wear skirts if an equivalent level of smartness can be achieved by the women wearing a trouser suit, for example.

The requirement which relates to make-up and high heels goes too far. It should be possible for employees to maintain appropriate dress and a professional appearance for your business without these additional requirements. The guidance states that any requirement to “wear make-up, skirts, have manicured nails, certain hairstyles or specific types of hosiery is likely to be unlawful”

Requirements on women to dress provocatively are likely to be unlawful and the guidance specifically comments that dress codes must not make employees vulnerable to harassment by colleagues or customers.

In terms of manicures and hair, it should be possible to require all employees, regardless of gender, to present a smart, neat and tidy took. In this way, dishevelled hair and dirty nails would not be acceptable on men or women. If this forms part of your dress code then it may be addressed lawfully through a disciplinary procedure as a conduct issue (provided it would be treated as a conduct issue for both genders).

Surely it is unfair to require a man to wear a suit and tie and not a woman?

No. If you have a dress code it must apply to both men and women. It may set different requirements but these must be of a similar standard and not stricter for one sex. The guidance uses the specific example of a suit and tie as not being unlawful if women are also expected to wear smart office attire.

What about transgender staff?

The guidance specifically addresses the situation with transgender employees noting that some individuals will undergo a process of aligning their life and physical identity to match their gender identity. The guidance states that transgender employees should be allowed to follow the dress code in a way which they feel matches their gender identity.

Should religious symbols be permitted?

The guidance addresses this point which is often tricky for employers, emphasising that Britain is “an integrated and cohesive society with a proud tradition of religious tolerance”. Flexibility in this regard is encouraged and dress codes restricting religious symbols should not be set if there is otherwise no interference with the employee’s work.

To avoid your dress code being discriminatory:

  • The dress code should apply equivalent standards but this does not mean exactly the same for both sexes.
  • Consult with employees/unions on the dress code requirements
  • Look out for protected groups that might be adversely impacted more than others
  • Consider if exceptions can be applied, e.g. religious jewellery, reasonable adjustments for disabled employees
  • Consider health & safety issues, e.g. will particular shoes make staff more prone to slips and trips or injuries to the feet?
  • Clearly communicate your policy
  • Be consistent in the application of the policy and any disciplinary action

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.