Following a petition signed by more than 150,000 people calling for the law to be changed to make it illegal for a company to require its female staff to wear high heels at work, an inquiry by the Petitions Committee and Women and Equalities Committee was recently undertaken and the report was published last week. The findings make interesting reading on the issue of discriminatory dress codes and extend way beyond the subject of high heels.

Background

The petition was triggered as a result of an individual’s experience (Nicola Thorpe) after she was sent home from work for refusing to wear high heels. Ms Thorpe was employed by Portico, an employment agency. She arrived at work at PWC’s offices in London to conduct work as a temporary receptionist. On arrival, she was told that the smart flat shoes she was wearing did not comply with the agency’s dress code which included a specific requirement to wear shoes with a heel height of between 2 and 4 inches. She was given the opportunity to buy a pair of heels but when she refused she was sent home with no pay.

Throughout the course of the inquiry it became clear that Nicola Thorpe’s incident was not an isolated one – and nor is the problem confined to high heels.  The inquiry heard from hundreds of women who expressed not only the pain caused by wearing high heels for long periods in the workplace, but also from women who had been required to dye their hair blonde, to wear revealing outfits and to constantly reapply makeup. 

The existing law

In terms of an employer’s legal obligations, Section 11 of the Equality Act 2010 provides that sex is a protected characteristic and Section 13(1) defines direct discrimination as follows:-

Person (A) discriminates against another (B) if, because of a protected characteristic, (A) treats (B) less favourably than (A) treats or would treat others. 

Therefore, the question is whether female staff are subjected to less favourable treatment in terms of employment terms and conditions, compared with any requirements placed on male workers.  This means that the dress code should not be more onerous for one gender than for the other and any dress code violations should be enforced consistently. 

Despite the Equality Act 2010 being clear in principle by setting out what constitutes discrimination in law, discriminatory dress codes remain common in some sectors, particularly leisure and tourism, travel, temporary work agencies, corporate services, retail and hospitality.

Findings

The report published by the Petitions Committee and Women and Equalities Committee (the Report) found that the existing law is not yet fully effective in protecting employees from discrimination at work. In addition, there seems to be considerable uncertainty about whether specific provisions, such as requiring female colleagues to wear makeup, are permissible or not.  In particular, the need to prove that a particular requirement constitutes “less favourable” treatment seems to be a barrier to claims in cases where the dress code requires workers to dress in a way many people in society already adopt by choice.

Recommendations

In an attempt to overcome the issues the Report recommends 3 main solutions:-

1. For the Government to review this area of law and to ask Parliament (where necessary) to amend it to make it more effective.
2. More effective remedies for employment tribunals to award against employers who breach the law.
3. Detailed guidance and awareness campaigns targeted at employees, workers and students.

In our experience, many employers who look to introduce dress codes often overlook the issue of equal treatment leaving them at risk of discrimination claims where compensation can be significant. Employers should therefore review their existing dress codes to make sure they don’t get caught out following raised awareness over this issue.

Key Contact

Fabio Grech LLB (Hons) – Partner

Contact us on employment@berrysmith.com or 029 20 34 55 11 for a no obligation discussion or for further information.