Following one woman’s petition to prevent employers from requiring female employees to wear high heels, dress codes are a hot topic. But should employers be concerned about imposing a dress code in the workplace?
Nicola Thorp was sent home by her employer without pay after her refusal to follow company rules and wear a 2- to 4-inch high heel at all times. Her subsequent petition received more than 152,000 signatures and resulted in the House of Commons Petitions Committee investigating the issue.
Its report, published at the end of January 2017, revealed ongoing discriminatory practices in relation to dress codes. It called for the Government to take urgent action to improve the effectiveness of the Equality Act 2010 and to review this area of the law. It also recommended more effective remedies as a deterrent for employers who breach this area of the law, such as increased financial penalties, along with awareness campaigns to improve the understanding of workers’ rights. The matter will be debated in Parliament on March 6, 2017.
Employers are entitled to set standards of dress to project their desired company image. Certainly, in the travel industry there are many customer-facing roles in which wearing a uniform or adherence to a dress code is considered standard. It would be almost impossible to imagine airline cabin crew not wearing a uniform and many travel agents have uniforms or dress codes to project a professional customer-facing image, and as an extension of their organisation’s branding.
The Equality Act 2010 makes it unlawful to discriminate against individuals with various defined protected characteristics such as gender, religion or belief, disability or gender reassignment. When looking at dress codes, employers need to be careful not to fall foul of discrimination laws.
In the recent report on dress codes, the Government’s view was that the requirement for female employees to wear a high heel is directly discriminatory.
If an employer’s dress code inadvertently disadvantages employees sharing a protected characteristic, then they may indirectly discriminate against those employees.
An employer can defend a claim of indirect discrimination if it can show that the dress code is a proportionate way of achieving a legitimate business aim. However, courts will look closely at whether the dress code is the best or most non discriminatory way of achieving a company’s business aim.
Organisations need to be clear about the need and reasons for applying their dress code in the way that they do.
Following on from case law, the Petitions Committee looking into dress codes suggested that legitimate aims for employers might be: health and safety; to establish a necessary public image; to project a smart and uniform image; and to restrict dress or insignia which might cause offence.
The Courts will look at dress codes as a whole when determining whether or not they are discriminatory. It is accepted that men and women are different and that they may be subject to different requirements. Provided the employer applies the same equivalent standards to men and women, employers should not fall foul.
No. Employers should always give special considerations to any dress code requests from employees owing to religion or belief, disability or gender reassignment and consider whether adapting the policy would be reasonable.
What is clear from the Nicola Thorp debate is that this presents not just a legal risk for businesses but a reputational risk.
The current debate does not mean the end of the dress code, but there is a clear movement from recent cases towards removing any gender imbalance in the workforce.
It is important that management should be aware of issues that could arise when seeking to enforce a dress code and that they are dealt with appropriately.
From a PR perspective, the outrage from both the public and the press has focused on requirements that are seen as sexually objectifying women. To minimise the risks, employers should focus on standards that promote a smart and professional appearance and apply them even-handedly to both genders.
For further guidance, contact Abigail Maino, a solicitor in asb law’s employment team: firstname.lastname@example.org
Telephone: 01293 603626.