A step too far? Discriminatory dress codes in the workplace

In December 2015, Nicola Thorp was sent home from her job as an agency receptionist, without pay, for failure to comply with the agency’s dress code. She was wearing flat shoes and the dress code required women to wear shoes with heels of between two and four inches. Ms Thorp started a petition, signed by more than 150,000 people, calling for it to be made illegal to require women to wear high heels at work.

As a result, two House of Commons committees produced a joint report on dress codes in the workplace. The government’s recent response to that report says that it takes the issue of discriminatory dress codes very seriously, but rejects any prospect of legislative change, favouring an approach based on detailed guidance, an awareness campaign and “persuasive enforcement” by the Equalities and Human Rights Commission. Detailed new guidance on dress codes, produced by the Government Equalities Office, ACAS and the Health and Safety Executive, is expected this summer. Some media commentators have observed that a requirement to wear high heels is discriminatory because a man would not be required to wear them.

However, in the 1996 case of Smith v Safeway Plc the Court of Appeal held that having different dress code requirements for men and women would not be discriminatory if they applied a conventional standard of appearance and, taken as a whole, rather than item by item, neither gender was treated less favourably. This means that the dress code should not be more onerous for one gender, but in reality this decision does little more than to con rm conventional preconceptions about dress and appearance. It does not tackle the question raised by Nicola Thorp, as to why women are expected to wear high heels. A dress code can clearly create comfort and health issues, and should not disadvantage one gender over another in this regard, even if it is conforming to a social ‘norm’.

Employers have few decided legal cases on this subject to guide them, and fuller guidance on dress codes would be welcomed. However, it is regrettable that there will be no review of the law as recommended by the committees. Considerable uncertainty remains about various aspects of the law which, together with the paucity of legal cases challenging discriminatory dress codes, can be exploited by unenlightened employers.

Readers of this website, however, will no doubt await the published guidance with interest, and will review their dress codes in light of it, or even in anticipation of it.

Matthew Clayton leads our employment law department, handling the full range of contentious and non-contentious employment law issues for clients including multi-national companies, owner-managed businesses and not-for-profit organisations. Legal directory Chambers says “clients appreciate his down-to-earth, practical and common- sense approach”.