Posted by Charlotte Prideaux, Trainee Solicitor
Are your dress codes discriminatory?
Dress codes in the workplace have received a lot of attention over the past few months. We discuss what a discriminatory dress code is and how to avoid one in your company.
On 23 January 2017 the Parliamentary Petitions Committee published its report “High Heels and Workplace Dress Codes” which is deeply critical of what it characterises as discriminatory dress codes. Decisions in the ECJ are expected later this year which will clarify whether employers are justified in banning certain clothing being worn at work, for example head-scarfs.
What do these developments mean for your business, and is it still lawful to have a dress code?
High heels for women
Many of you will have seen the story last year about the receptionist, Nicola Thorp, who was told that she must wear 2-4 inch heels by her employment agency, Portico. She was sent home from accountancy firm PwC when she refused and she posted her views on Facebook. She said wearing flat shoes wouldn’t impact on her ability to do her job, and wearing high heels would be difficult as she was on her feet all day. And, she said, why didn’t the same rule apply to men?
Her posts went viral and the issue generated huge interest and comment, most of it adverse publicity for Portico. After an initial defensive response, Portico said it would review its dress codes (incidentally its policy has been leaked and includes illuminating tips on acceptable nail varnish colours, rules on reapplication of make up and specifics on lipstick, blusher, mascara, eye-shadow, the thickness of hosiery, and banning visible dyed hair roots). Apart from the reputational damage, Portico would find it difficult to legally justify its dress codes, for the reasons given by Ms Thorp. A ‘high heels requirement’ is obviously discriminatory; what employer would want to give evidence in an employment tribunal explaining why high heels are ‘required’ for the role?
The Dorchester Hotel was embarrassed when its “grooming rules” were leaked recently. These rules came about following complaints about the staff hygiene, however they included requirements such as female employees being told not to turn up for work with oily skin, bad breath or garish makeup and they were encouraged to shave their legs.
There is obviously nothing wrong in requiring employees to be presentable at work. And issues such as personal hygiene at work are of course issues which need to be dealt with appropriately and sensitively. But employers who add shaved legs, oily skin and specific make-up requirements to its rules will likely lose, both legally and reputationally.
The High Heels and Workplace Dress Codes report considers medical evidence and evidence it heard from employees, employers and senior lawyers. It details the medical evidence of the negative health effects of high-heels, both physical effects and psychological effects of “humiliating and degrading” dress codes, including what some survey participants considered to be a requirement to be “sexualised” as part of their role. As the report makes clear, although the Equality Act 2010 in principle bars discriminatory dress codes, there is a “culture” of employers not following a law which is difficult to enforce, also very few employers consider their dress code with reference to their health and safety or employer wellbeing obligations.
What can an employer justifiably say an employee can or cannot wear?
There are two cases awaiting decisions in the European Court of Justice on whether it amounts to religious discrimination to refuse to allow employees to wear a headscarf at work. However, the legal opinions presented to the Courts in both cases by the two Advocate Generals are contradictory: in one case the legal opinion is that a refusal to allow an employee to wear a headscarf is direct religious discrimination (Bougnaoui v Micropole SA), in the other that it is not (Achbita v G4S Secure Solutions NV). The Court is not obliged to follow the AG’s opinion in either case and we will update you when the judgments are issued.
What does all this mean for dress codes?
A dress code is not unlawful, but care needs to be taken to make sure it isn’t discriminatory. A policy which refers to female employees’ appearance (such as high heels, make-up, skin condition, or skirts for women) is more risky than a neutral policy which applies to everyone such as “business wear”, “presentable appearance” and “no jewellery”.
A business should always consider the reasons behind its dress code requirements. What is it trying to achieve with a dress code and does it actually achieve this? Is there any part of the code which appears to apply differently to women, or to members of a particular religion? Is this a potentially discriminatory requirement, if so what does the business consider to be the legitimate business need for this requirement? It’s unlikely to be sufficient to argue it’s for “corporate image” or “a more professional look”.
Key points on dress codes:
- Your dress code should set standards for appropriate dress without differentiating between men and women
- Dress codes which ban clothing worn more commonly by particular religious or minority groups may amount to direct discrimination (if the AG’s Opinion in Bougnaoui is upheld) and therefore cannot be justified
- Think about what you are trying to achieve. Is it dress code about corporate image, or is it related to health and safety? Different requirements will apply depending on what you’re trying to achieve
- Consider the role that employees are performing and tailor the dress code to the role where appropriate. For example, it will be easier to justify a strict dress code or a ban on jewellery for someone working with food or in a medical environment than it will be for someone in an office
- Reasonable adjustments must be made for disabled people.
Are you concerned that your dress code may be discriminatory or need updating? Contact our specialist employment team for advice on
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