Is your business dress code legal? Parliament enters into the debate on high heels and workplace dress codes

Monday, 6 March, saw Members of Parliament debate high heels and workplace dress codes (see here). Why? Because back last year, Nicola Thorp a temporary receptionist for a large City accounting firm, made the headlines after she was sent home for the day (unpaid) for wearing flat shoes, which breached a dress code requiring female workers to wear 2 to 4 inch heels.  She petitioned the government to actively address and prohibit gender-specific discriminatory dress code requirements and with “heelgate” attracting more than 150,000 signatures, she triggered the right for her petition to be debated in Parliament.

Attitudes going back to “1950s but probably the 1850s might be more accurate”

These were the words of Helen Jones, who chairs the Petitions Committee, alluding to the findings of a parliamentary inquiry “High heels and workplace dress codes” which published its report (the Report) on 25 January 2017. That inquiry concluded that despite the protection against sex discrimination provided for in the Equality Act 2010 (EA 2010), discriminatory gender specific dress codes are unfortunately still widespread, particularly in certain sectors. And whilst Ms Thorp’s petition referred specifically to the requirement for females to wear high heels, other examples of potentially discriminatory gender requirements have been highlighted, including requirements for females to wear skirts/dresses, nail varnish from a selected colour range, or make-up (and to re-apply regularly).

Concerns have also been raised over employers’ failure to consider the health and safety implications of imposing certain gender specific dress code requirements, particularly with regard to the mandatory wearing of high heels.

Getting dress codes wrong… will the stakes be raised?

As “heelgate” aptly demonstrates, the negative publicity associated with even a mere allegation of sex discrimination has the potential to significantly damage corporate image, as well as employee and client relationships. These reputational consequences can far outweigh any compensation a victim may be awarded for financial loss or injury to feelings if their allegations are proven.

The Report however pushes for more to be done. The evidence submitted to the inquiry demonstrated that there are many more silent “heelgates” out there. The Report calls for an investigation by the Government Equalities Office (GEO) and the Ministry of Justice to identify whether the existing provisions of the EA 2010 provide adequate protection in this area. Citing the success of penalties introduced to enforce the National Minimum Wage, the Report recommends that “the Government substantially increases the penalties available to employment tribunals to award against employers, including the financial penalties” and that penalties should be set at a level to act as a deterrent to employers, possibly with a requirement to make a payment to every worker who is subject to a discriminatory dress code. At present, employment tribunals can impose penalties where there are ‘aggravating factors’, but in practice, these have been rarely imposed. Indeed, the Report concluded that the EA 2010 is “not yet fully effective” in protecting women from discrimination and the government needs “to do more and must do it quickly“.

Time to review business dress codes

Most businesses value or need some form of dress code – whether it be for health and safety reasons, or to simply present a professional image, both within and outside the workplace. Whilst many businesses may not consider that their dress codes reflect the “dodgy 1970s workplace diktat“, in the words of the Equalities Minister, Caroline Dinenage, she made it clear that the government “utterly condemns such dress requirements where their effects are discriminatory“.

While we await the government’s response to the Report (which should be published within two months), employers should not sit back and risk being the next “heelgate”. Key questions to consider include the following:

• What is the reason for having the dress code policy? With this in mind, is each requirement of your dress code reasonable and justified?
• It is preferable/possible to have a gender-neutral policy which applies equally to both males and females?
• If your dress code imposes separate requirements on males and females:
  • do any of the requirements reinforce rigid gender stereotypes which risk making workers feel uncomfortable?
  • can you justify the reason for the different requirements to avoid inferences of discrimination?
• How are you ensuring managers and employees are aware of any dress code? Are they applying it consistently? Are they aware of who to contact when deviations from it are requested?
• Are there any other ways to promote a uniform corporate image, such as branding and training workers in how they should project an internal and external image.
• Are there avenues for workers to feel secure in raising any issues they have and how will you make sure their concerns will be taken seriously? The Report indicates that employers often fail to take workers’ complaints seriously and that workers feel too insecure to challenge potentially discriminatory dress codes, informally or formally.

Employers should also remember that discrimination is not limited to ‘gender’ specific issues. The EA 2010 contains nine protected characteristics and care must similarly be taken that a dress code does not infringe the protection afforded by the EA 2010 in respect of each of these. Indeed, employers should also keep a look out for the European Court of Justice’s decisions in Achbita v G4S Secure Solutions NV and Bougnaoui v Micropole Univers, which will rule on dress codes and religious belief.

New guidance from ACAS and the Health and Safety Executive (HSE) is also expected later this year. The Report tasks the GEO with working with ACAS and the HSE to publish detailed guidance for employers to help them understand how discrimination law and health and safety law apply to work place dress codes. We await with interest how it seeks to tackle some of the more thorny issues.