In December 2015, an agency worker arrived to work as a receptionist and was sent home without pay for failure to wear high heels in accordance with the agency’s dress code. The story attracted widespread media attention, and led to an enquiry by a House of Commons Committee whose report was published in January 2017. As a result, the Government promised to update its guidance on dress codes during 2017, but the Government Equalities Office (GEO) has only just published the long-awaited guidance.
“High heels and workplace dress codes”
The enquiry resulted in publication of the report “High heels and workplace dress codes” in January 2017.
The report concluded that wearing high heels is damaging to female workers’ health and wellbeing, and that certain other dress code requirements make some female workers feel uncomfortable. It made three main recommendations:
- the Government should review this area of law;
- more effective remedies should be available against employers who break the law, including injunctions against potentially discriminatory dress codes; and
- detailed guidance and awareness campaigns should be developed.
In response to the report in April 2017, the Government rejected any proposal to make legislative changes, such as a new power to order injunctions, but promised updated guidance which has now been published.
“Dress codes and sex discrimination: what you need to know”
On 17 May 2018, the GEO published its guidance “Dress Codes and sex discrimination: what you need to know”.
The guidance, which is very brief, advises employers on their legal obligations when setting and applying a dress code and also gives advice to employees if they think a dress code is unlawful.
Whilst by no means extensive, the guidance is at least clear on a number of issues which have caused concern over recent years: that flat shoes and trousers should be permitted irrespective of gender, and religious symbols should be allowed unless they interfere with work.
The guidance advises that gender-specific requirements should be avoided, such as a requirement to wear make-up, to have manicured nails or to wear hair in a specific style. For example, it’s likely that a dress code would be unlawful if it required female employees to wear high heels, with all the discomfort and inherent health issues these can cause, without placing any footwear requirements on men, because it treats women less favourably than men.
Employers are reminded in general to have regard to any potential health and safety issues when setting a dress code – so that if particular footwear is required (as part of the dress code rather than for personal protection), then they should consider whether this will make employees more prone to slips and trips or injuries to the feet.
Disability, transgender and religious discrimination
Whilst the guidance focuses on sex discrimination, it also makes brief reference to the possibility of disability, transgender and religious discrimination.
It advises employers to consider whether a particular dress code may have a more onerous impact on disabled employees, and to consider any reasonable adjustments which may be necessary. It also advises that transgender employees should be allowed to follow the employer’s dress code in a way which matches their gender identity; and employers should not set dress codes which prohibit religious symbols, unless they interfere with an employee’s work (or, presumably, give rise to any health and safety issues).
In addition to the advice given on the content and application of a dress code, the guidance also advises on general good practice and recommends that, when setting or changing a dress code, employers should consider the reasoning behind it, and consult with employees, staff organisations and trade unions on the details. Once agreed, the dress code should then be communicated to all employees.
Advice for employees
If an employee thinks that the company dress code is discriminatory, the guidance advises that they speak to their line manager in the first instance, explaining the reasons. The manager should engage constructively with the employee’s concerns but, if they react badly to the complaint, for example by criticising or penalising the employee in some way, the employee may have a claim of victimisation.
If an approach to the manager does not resolve the issue, employees are advised to follow the appropriate HR processes in the organisation or to contact their trade union representative. Ultimately they may have a right of action in the employment tribunal if discrimination has occurred.