News & Views

Dressing to impress – can employers take it too far?

What should I wear to work today? Not a controversial question for some. However, for others that decision is taken out of their hands – or at least restricted – as a result of dress codes stipulated by their employer.

The issue of dress codes in the workplace is certainly a topic that creates a great amount of debate.

Many would have seen the recent petition to Parliament brought by Nicola Thorp seeking to stop employers requiring women to wear high heels at work.  In her case, she was a temporary worker who was told to wear heels between two and four inches. When she refused to do so, she was sent home by her employer arguing that she was in breach of the staff uniform rules.

What does the law say?

As the law currently stands, requiring a woman to wear high heels is not necessarily unlawful, so Ms Thorp did not have a viable claim to take to an employment tribunal.

However, Ms Thorp’s petition generated more than 150,000 signatures and resulted in two parliamentary committees looking into this issue and producing a report which highlighted that discriminatory dress codes are still widespread in the workplace. The report called for tougher laws on discrimination, particularly in relation to dress codes.

So can a dress code be discriminatory?

In short, yes. You firstly need to identify a protected characteristic (such as sex or religion/beliefs) and there are two types of discrimination that are particularly relevant to this issue – direct or indirect discrimination.

Direct discrimination arises where an employer treats an individual less favourably because of the individual’s protected characteristic. Such treatment cannot be justified.

Indirect discrimination occurs where there is a provision, criterion or practice (in this case a dress code) which applies to all employees equally but has an adverse effect on a particular protected group and the individual in question. However, this can be justified if the employer can demonstrate that it is a proportionate means of achieving a legitimate aim.

The ECJ has recently looked into this issue of whether a dress code banning employees from wearing any visible religious, political or philosophical symbols in the workplace (in the particular case under consideration, this involved an Islamic headscarf) is discriminatory. The ECJ found that the enforcement of this dress code, and subsequent dismissal of an employee for failing to comply with it, did not amount to direct discrimination as it affected all employees equally. However, it was held that it was capable of amounting to indirect discrimination and therefore an employer would have to show that it could be objectively justified if it wanted to avoid a finding of discrimination.

Imposing Dress Codes

As we have highlighted previously, there is nothing wrong in having a dress code in place within an organisation. Indeed in many sectors, such as retail and hospitality, having a particular dress code/uniform is commonplace.

What these recent cases have highlighted is that when drafting a dress code policy or facing queries on dress codes, employers should always be alert to potential areas of discrimination, for instance on the grounds of sex, disability and religion or belief.

In particular, when seeking to enforce a particular dress code, employers should look at the purpose and reasoning behind this, particularly if it can disadvantage a certain group or protected characteristic. What these recent developments have shown is that it is easier for employees to bring a claim for indirect discrimination in seeking to challenge an employer’s dress code.

Justifying the dress code can encompass a number of things, for instance the importance of presenting a professional image or, as in the ECJ case above, the need to project an image of neutrality in relations with customers. It would also be helpful to consider the balance between the reason for any dress code and the disadvantage likely to be suffered by an employee and record whether you have considered different options and why this was not appropriate. Giving thought to this – and contemporaneously recording those thoughts – when formulating/enforcing a dress code can go a long way to fending off any potential complaints by employees.

Health and Safety

One point which the parliamentary committee also highlighted was that wearing high heels for extended periods of time are damaging to an employee’s health and wellbeing in both the short and long term.

Employers therefore need to consider the health and safety aspect of any particular dress code and, in particular, whether the enforcement of such a policy could expose them to disability discrimination claims.

The Future

The parliamentary committee report has called for there to be tougher laws on discrimination. Particularly, it has recommended that “the Government substantially increase the penalties available to employment tribunals to award against employers, including the financial penalties. At present, such penalties are not sufficient deterrent to breaking the law.”

It remains to be seen how Government will respond to all the recent coverage surrounding dress codes and, if they do, whether it will have any impact on how the law on discrimination is shaped. Employers may wish to consider reviewing their current dress code policies, in light of these recent developments, in order to assess whether they are justifiable.

For help with any of the above employment issues in the workplace, please contact Mark Fellows or Joanne Perry.

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