Everyone is familiar with the plight of Nicola Thorp, who was instructed by PwC in 2015 to wear shoes with a heel height of between two and four inches for her work as a receptionist. The case received widespread media attention and many were shocked that employers still enforced such requirements for female staff.
So it’s perhaps even more surprising that in 2018 the law continues to allow different dress requirements for men and women.
In 1996 the case of Smith v Safeway held that tribunals should adopt a ‘package’ approach to dress codes and that provisions did not have to be identical for men and women. In this case women working in the delicatessen department at Safeway were permitted to have long hair, although it should be tied back. Men, on the other hand, were not permitted to have hair longer than shirt collar length.
The Court of Appeal concluded that the rules for men and for women were equally rigorously applied by Safeway and, as such, men were not being treated less favourably. As a result, it was held not to be discriminatory to have different dress provisions for men and women.
Surprisingly the law has not changed since. Employers are still entitled to enforce different requirements for each gender as long as they do so in an even-handed way, even though those conventions themselves may be informed by sexual stereotypes.
It is clearly not lawful for an employer to require female employees to wear low-cut tops or short skirts where an equivalently provocative outfit is not expected of males. But it would appear that it is lawful to have a particular requirement for men to wear a shirt and tie where women are expected to wear smart office attire.
In response to a recommendation from the Women and Equalities Committee and the Petitions Committee, the Government Equalities Office published guidance in May on dress codes and sex discrimination. You might expect this to have set out radical new suggestions for approaching dress codes in the workplace. But the guidance simply reiterates the current position. It uses the example (which is stated to be lawful) of requiring a receptionist to dress smartly, on the basis that there are no gender-specific requirements in such a code. However, this could easily stray into a direct discrimination claim if a female employee is expected to wear make-up but a male employee is not (or is even discouraged from doing so). So perhaps the devil is in the detail, and it depends on employers themselves updating their expectations.
Lucy Gordon is a senior solicitor at ESP Law, provider of the HR Legal Service