You may have read about Nicola Thorp, a receptionist, who was sent home for refusing to wear high heels. This sparked considerable debate about dress codes in the workplace, particularly for female employees. The dress code for the company that Nicola worked for required (amongst other things) the following from female employees:
Heels of at least 2 – 4 inches with no flat shoes permitted, regularly maintained hair colour, specified makeup to be worn at all times and regularly reapplied, nail varnish from a specific colour palette and tights of no more than 15/20 denier to be worn at all times.
Nicola began an online petition to make it unlawful to require women to wear high heels at work. It achieved over 150,000 signatures which triggered a response from the government. Its response was that in essence it is down to the employers to set their own dress codes, but that the codes must be reasonable as must any different dress codes for male and female employees. What it did not say was what is meant by reasonable, leaving employers unsure how to respond. The government did commit however to work to ensure that women were not being discriminated against in the workplace.
Further pressure on the government to take stronger action came in the form of the Parliamentary Committee for Women and Equalities. Its January 2017 report called upon the government to review this area of the law, consider changes and, introduce tougher penalties for employers who continued with discriminatory dress codes.
It was particularly concerned about the potential health issues involved in wearing high heels, commenting that "Dress codes which require women to wear high heels for extended periods of time are damaging to their health and wellbeing in both the short and the long term." It also raised wider issues about discrimination saying “We are also concerned about the extent to which gender-specific dress codes reinforce rigid gender stereotypes which might make workers, especially some LGBT+ workers, feel uncomfortable”.
The Committee noted that often the problem is that the employer has simply not thought through the practical or health implications of a particular dress code. Its view was that whilst the Equality Act was clear in principle (i.e. that an employer should not discriminate between men and women in the workplace), the practical application was not so easy. It thought that there should be greater awareness of the issue. This has now happened through the resulting media storm.
It is of course open to any employee who feels that they are subject to a discriminatory dress code to raise it with the employer and if necessary take legal action. However, the Committee felt that many employees did not feel able to challenge them. This might be because an employee might fear losing their job, being subject to disciplinary action or some other sanction e.g. lack of promotion. Until July 2017 there was also the need to pay Tribunal Fees which acted as a deterrent to bringing a claim.
The government’s response in April 2017 said that although they felt that the Equality Act was adequate, they would issue guidance to employers by the summer of 2017 on workplace dress codes. It said they will consider whether to include the more controversial points on dress codes which have been identified e.g. hair colour, nail varnish etc. At the time of writing this has not been produced and it may be proving harder to draw up than anticipated as it will be difficult to know where to draw the line as to the level of detail. Can the government, and indeed should it, consider the specifics of a dress code or is that going too far?
There are no problems with requiring employees to look smart and professional with clean and well maintained clothes but there needs to be a distinction between that and dress codes which appear to objectify women. The Women and Equalities Committee report gives examples including flight attendants, receptionists and sales staff. One woman reported that “her employer had encouraged her and her colleagues to wear shorter skirts and unbutton their blouses more at Christmas time, when a higher proportion of male shoppers was anticipated”. This is the sort of practice that needs to be stamped out as it is clearly discriminatory. It is unlikely for example that male shop assistants would be encouraged to undo the buttons on their shirts and wear tight fitting trousers to appeal to female customers.
The position may have changed a bit more in favour of employees now that Tribunal Fees have been abolished (for now anyway) so that employees who have been subjected to discriminatory dress codes, either on religious or gender grounds, can now afford to bring their claims to a Tribunal. It doesn’t solve the problem of giving women the confidence to raise this in the first place with their employer and it is not clear how legislation or guidance can change this. Perhaps trade unions can step in to assist in workplaces where they are recognised.
To avoid this though, employers need to consider the reasons for their dress codes and whether they can be rewritten in a more gender-neutral way. Indeed, the company at the centre of this issue promptly did so and produced a more gender-neutral dress code which has no reference to size of heels or to a specific colour palette. Perhaps this can be a useful model for others to adopt. We will await the government guidance on this point.
Kate Exall is a Senior Lecturer in Law/ Programme Leader 2 year Intensive LLB at Faculty of Business and Law