When Nicola Thorp arrived for her first day as a receptionist at PwC in London she was told she did not meet the dress code and sent home without pay for refusing to wear shoes with a “two-inch to four-inch heel”. This wasn’t PwC’s policy but that of its outsourced provider Portico.
Since this incident, many questions have been raised about clothing policies. So now is a crucial time to review your dress code, and not just in relation to footwear. There are a number of potentially tricky areas:
1 Sex discrimination. The case of Smith v Safeway ruled that as long as an even-handed approach is adopted, the fact that members of one sex are required to wear clothing of a particular kind but members of the other are not will not necessarily mean one sex is treated less favourably than the other.
2 Discrimination on the grounds of religious belief. In Dhinsa v Serco a tribunal found that an employer’s ban on staff wearing a kirpan (the Sikh ceremonial dagger) placed the claimant and other Amritdhari Sikhs at a particular disadvantage for indirect discrimination purposes. In Eweida v British Airways BA had a policy for uniformed staff that did not allow visible jewellery.
Eweida is Christian and was prevented from wearing a visible cross around her neck. The European Court of Human Rights said that Eweida’s cross was discreet, would not have detracted from her professional appearance, and would not have encroached on the interests of others.
3 Disability discrimination. An employer is required to make reasonable adjustments to remove barriers to a disabled employee carrying out their role. If a staff member has a medical condition that means they cannot conform to the dress code the employer would be required to make an exception and allow them to wear alternative attire.
4 Personal injury. The prolonged wearing of high heels may lead to osteoporosis in knees as well as other leg problems. If an air steward who has worked for the same company for 10 years develops osteoporosis they may have grounds to make a personal injury claim against their employer – if wearing high heels was a requirement.
It is not all bad news. There will be no indirect discrimination if the employer’s actions can be objectively justified. To establish justification an employer needs to show there is a real business need, the rule is a proportionate means of achieving that aim, and that there are no less discriminatory means available.
Sarah Dillon is a director at ESP Law. ESP Law is the provider of HR magazine’s HR Legal Service.
