Dress code and discrimination

It is common for an organisation to have a dress code in place to provide clear rules regarding what is and is not acceptable dress in the workplace.

There have been several high-profile news reports over recent months and years which have questioned the appropriateness of dress code policies in the workplace, leading to some confusion about whether they may still be used in a modern workplace.

Firstly, it is acceptable and, in some cases, advisable to have a dress code in place. It is reasonable for an employer to expect that its employees present themselves in a professional manner and that clothing is presentable and appropriate to the environment in which they work. Some dress codes are in place for health and safety reasons and are therefore essential.

High heels, government guidance and the law

One of the widely discussed cases related to Nicola Thorpe’s challenge against a leading professional services company, following her being sent home from her job for not wearing heels. Her subsequent petition to make it illegal for women to wear heels reportedly gathered around 150,000 signatures and, in addition to widespread indignation following press interest, it was also a factor in prompting a government review.

Addressing the matter of high heels, the guidance confirms that:

'It is likely to be unlawful under the Equality Act 2010 for employers to require women to wear high heels, with the discomfort or health issues that may entail, and as there is no male equivalent.'/

So, whilst not a change in the law, it does make it clear that a discriminatory dress code may already be unlawful under existing legislation.

It states that the Equality Act 2010 does not set out specific examples of practices that are unlawful, or definitions of behaviours that are ‘sexist’, ‘racist’ or ‘homophobic’ etc. It sets out the legal framework, including a ban on sex discrimination and harassment, and it is ultimately for the courts to decide whether a practice is unlawful depending on the facts of each case.

A dress code could be unlawful, for example, if it requires female employees to wear high heels, with all the discomfort and inherent health issues these can cause, because it treats women less favourably than men.

A summary of government guidance

• A workplace dress code is a set of standards that employers develop about what is appropriate for employees to wear to work.
• Dress codes can be a legitimate part of an employer’s terms and conditions of employment.
• Dress policies for men and women do not have to be identical, but standards imposed should be equivalent. Dress codes must not be a source of harassment by colleagues or customers, for example women being expected to dress in a provocative manner.
• It is best to avoid gender specific prescriptive requirements, for example the requirement to wear high heels. Any requirement to wear make-up, skirts, have manicured nails, certain hairstyles or specific types of hosiery is likely to be unlawful.
• Consulting employees and trade unions over any proposed dress code or changes to an existing code will help ensure that the code is acceptable to both the organisation and its staff.

What needs to change?

Providing your dress code follows an element of common sense and is not clearly discriminatory, there shouldn’t be any surprises in the new guidance.

However, it would be advisable to now review your dress code to ensure that it is still fit for purpose, and that it does not contain any content which may be considered discriminatory.

Remember, it is not only sex discrimination you need to be aware of; the government guidance also provides a reminder on guidance relating to dress codes, which include:

• reasonable adjustments for disabled employees;
• transgender staff; and
• religious symbols.

If you have got any concerns about whether you have the right policies and procedures in place, please contact Kerri Constable or your usual RSM contact.