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Could your Work Place Dress Code be Unlawful?

on Friday, 05 May 2017.

The government has recently published its response to the joint report on dress codes in the workplace by the House of Commons Petitions Committee and Women and Equalities Committee.

The Committee's Recommendations

The House of Commons Petitions Committee and Women and Equalities Committee produced a report in January 2017 entitled 'High heels and workplace dress codes' in response to an online petition signed by 150,000 people, which called for legislative change to make it illegal to require women to wear high heels at work. The petition was started by Nicola Thorp, who was sent home by her new employer without pay in December 2015, for failing to comply with its dress code which required women to wear shoes with heels of between two and four inches.

The report concluded that a dress code requiring women to wear high heels is damaging to their health and wellbeing. It made a number of recommendations including:

  • a thorough review of the existing legislation in this area to make it easier for claimants to establish that they have suffered discrimination in dress code cases
  • introducing more effective remedies against employers found to breach the law and
  • producing more detailed guidance for employers and workers as to how discrimination and health and safety law apply to workplace dress codes

The Government's Response

On 20 April 2017, the government published its response to the report, rejecting any recommendations which would require legislative change. The government's view is that the existing law in this area is sufficient to protect women who are subjected to discriminatory dress codes and that the law is simply poorly understood by both employers and employees. The government's response sought to clarify that 'a dress code that makes significantly more demands of female employees than of their male colleagues will be unlawful (direct sex discrimination)'.

Instead, the government is favouring an approach based on detailed guidance, awareness campaigns and 'persuasive enforcement' by the Equalities and Human Rights Commission (EHRC). This approach will include:

  • providing fresh guidance in conjunction with ACAS and the Health & Safety Executive which will clarify the law in this area for both employers and employees
  • developing an awareness campaign to help workers understand how they can make formal complaints and bring claims if they believe they have been subjected to discriminatory treatment at work and
  • encouraging employers to suspend a disputed dress code rule pending resolution by a tribunal and supporting the ongoing involvement of the EHRC and the Women and Equalities Committee through non-litigious means

Best Practice

  • In Smith v Safeway Plc, a dress code which required men to have hair 'not below shirt-collar length' (a requirement which did not apply to women) was found to be lawful when taken in the context of the dress code as a whole.

  • The Court confirmed in this case that a workplace dress code containing differing rules for men and women will not amount to sex discrimination where it adopts an even-handed approach in applying contemporary standards of conventional dress and, when taken as a whole, does not treat either gender less favourably than others. In reaching its decision, the Court of Appeal confirmed that this did not mean it could never be discriminatory to require men to wear their hair short.

  • Similarly, in DWP v Thompson, the Employment Appeal Tribunal has held that a dress code which required a man to wear a shirt and tie but women 'to dress appropriately and to a similar standard' would not necessarily be unlawfully discriminatory.

  • As well as sex discrimination, dress codes also risk discriminating against those undergoing gender reassignment, employees wishing to manifest their religious beliefs (eg by wearing a veil or a cross), and disabled employees.

  • Due to a lack of recent case law in this area, there remains considerable uncertainty about whether and in what circumstances, a dress code will be unlawfully discriminatory. Whilst more detailed guidance on dress codes is to be welcomed, it remains to be seen how the government's approach will work in practice.

  • Although it is not a legal requirement, employers should consider consulting with employees prior to introducing a dress code and be ready to consider exceptions where requested by employees who feel disadvantaged due to a protected characteristic.

  • Employers would be well advised to review their current dress code policies to ensure that they are not potentially discriminatory. Employers should carefully consider the requirements set out in any dress code and be able to explain its objectives for imposing the code.

For more information, please contact Eleanor Boyd from our Employment team on 020 7665 0842.

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