An employer’s guide to workplace dress code legislation
Introduction to workplace dress code legislationDress codes gained widespread media coverage last year through the case of Nicola Thorp, who was sacked for refusing to wear high heeled shoes. Ms Thorp was employed by Portico to work as a corporate receptionist and on her first day in the role she claimed that that she was told to go home without pay because she refused to buy shoes that had heels between two and four inches high. Ms Thorp then launched an online petition, which gathered in excess of 150, 000 signatures, to try to make it illegal for employers to force women to wear high heels at work. Given that dress codes can often be a contentious matter within the workplace, it’s not surprising that disputes over how they are applied crop up fairly frequently. Indeed, last year British Airways settled a long running dispute over its dress code after it agreed to allow female new recruits to wear trousers.
Government responseFollowing Ms Thorp’s position, a joint inquiry by the House of Commons Petition Committee and the Women and Equalities Committee was established and they published their recommendations on 25 January 2017. The Committees made three main recommendations: The government should review this area of the law That more effective remedies should be available against employers who breach the law, including injunctions against potentially discriminatory dress codes That detailed guidance and awareness campaigns targeted at employers should be developed The government provided its response to these recommendations on 20 April 2017, and although it confirmed that it wanted to ensure that women were not held back in the workplace by outdated attitudes and practices, it believed that the current law was to sufficient to protect women from discriminatory dress codes.
Legal positionSo what are the legal parameters for enforcing dress codes? From an employment law perspective the starting point is that a dress code will not amount to direct sex discrimination if it imposes different requirements for men and women provided that the overall standard of dress is the same. For example, a dress code that required male staff to wear a shirt and tie and female staff to dress “appropriately and to a similar standard” was not found to be unlawful. Similarly, a code which allowed women to have long hair, provided that it was clipped back, but prevented men having hair that grew below shirt-collar length was also permissible because the same standard of appearance was applied to both men and women. However, a dress code which is applied more strictly to men than women, or vice versa, is likely to be direct discrimination. In Ms Thorp’s case, the question would be whether the requirement for her to wear high heeled shoes meant that Portico’s dress code was being applied inconsistently between men and women, especially if her overall appearance was sufficiently smart. Interestingly, Portico subsequently changed its dress code policy to allow its female employees to wear plain flat shoes or plain court shoes. Its not only sex discrimination that employers need to be conscious of when applying their dress code policies but also transgender discrimination and religious discrimination. Preventing an employee from cross-dressing when this is a necessary precursor to gender reassignment is likely to amount to direct discrimination against transsexual employees. In relation to religious clothing, policies which prevent employees wearing items which are manifestations of their belief are likely to be indirect discrimination unless the policy can be objectively justified and this point was recently considered by the European Court of Justice in the cases of Achbita and Boungnaoui.
What next for dress code legislation?Given that there remains considerable uncertainty over the extent to which dress codes can be lawful, the government’s commitment to producing new guidance in conjunction with Acas and the Health and Safety Executive is helpful. The lack of cases in this area means that it can be hard for both employers and employees to determine whether, and in what circumstances, a dress code constitutes sex discrimination and the government itself recognises that the law is poorly understood. It is to be hoped that the government’s guidance will address these problems failing which there are likely to be further demands for changes in this area.
Nicholas Le Riche isa partner at Bircham Dyson Bell