Could your dress code be discriminatory?

26 January, 2017
by: Cripps Pemberton Greenish

In December 2015 Nicola Thorp was sent home from work without pay for refusing to wear high heels. She launched a petition, which attracted 152,420 signatories, prompting a joint inquiry by the Petitions Committee and Women and Equalities Committee, and their findings were published yesterday.

It’s clear that Nicola Thorp’s case was not an isolated incident. The Committees heard from women who were asked to wear shorter skirts, unbutton blouses and constantly re-apply their makeup. They found that discriminatory dress codes are widespread, that employers often fail to take complaints seriously and that employees often feel too insecure at work to challenge discriminatory dress codes.

The existing law on the matter can be found in the Equality Act 2010, which prohibits discrimination on the basis of certain protected characteristics, one of which is sex. It specifies that “Person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” So the question is whether females are treated less favourably by the dress code.

Yesterday’s report concluded that the existing law is “not yet fully effective” and recommended that it be reviewed. One of its recommendations was for a substantial increase in the financial penalties available to employment tribunals to award against employers found to have discriminatory policies.

What should employers do now?

  • If you are considering implementing a dress code, consider whether or not it is genuinely needed and make sure you can justify it. Requirements should be reasonable, e.g. a requirement that hair should be tied up when preparing food would be acceptable for hygiene reasons.
  • Ensure that dress codes apply equally to men and women. Any dress code that leads to a detriment for one will be discriminatory. Note that the College of Podiatrists provided written evidence to the Committees that there is a “direct causative relationship” between wearing high heels for extended periods and serious conditions including stress fractures, bunions and enduring balance problems. A requirement for women to wear heels would most likely lead to a successful discrimination claim.  
  • Also bear in mind that some employees may dress in a certain way for religious reasons. Try to facilitate that unless there is a genuine business or health and safety reason for prohibiting it.  
  • If possible, consult with employees and take on board their views at the outset.
  • If you already have a dress policy in place, now is the time to review and update it.

Related article: The do’s and don’ts of workplace dress codes