Legal lowdown: Dress code discrimination

?Government committees have called for action on discriminatory dress codes. So what are the key legal points to remember?

The Petitions Committee and Women and Equalities Committee started their inquiry following a petition brought by Nicola Thorp, an agency worker who was sent home because she refused to comply with her employer’s requirement to wear high heels. Thorp started a parliamentary petition that has received more than 150,000 signatures, highlighting the widespread concerns around this issue.

The joint report found that although discriminatory dress codes are outlawed by the Equality Act, in practice the law is not properly applied so provides no protection.

It calls on the government to review the law and make it more effective, to promote understanding of these laws with a publicity campaign, and to substantially increase the penalties employment tribunals can award against discriminating employers. They suggested that current penalties are not sufficient to stop employers breaking the law.

In the meantime, what areas of employment law do organisations need to reacquaint themselves with to avoid dress code discrimination in the workplace?

Employers are entitled to have and implement a dress code in their business; they may even be required to do so because of health and safety standards. However, employers should ensure that their dress codes are not discriminating against certain members of staff.

Dress codes must apply equally to men and women although they may have different requirements so long as these are of a similar standard. For example, a requirement for men to wear a shirt and tie will not treat men less favourably if women are also expected to wear smart office attire. The same cannot be said of the requirement to wear high heels; smart footwear can include flat shoes and it is likely that the requirement to wear high heels is less favourable treatment as it's asking women to look ‘sexy’ rather than smart.

When implementing a dress code that specifies different treatment for men and women employers need to ensure they have a genuine business reason for the difference to justify the policy. Some employers may want different dress for authenticity reasons or because the job role requires it, though it may be hard to prove this. It is essential that employers take time to speak to members of staff about the dress code and take on board any individual concerns, especially if these are related to gender.

In addition to discrimination on the grounds of sex, dress codes have the potential to fall foul of other protected characteristics. A dress code requiring men to wear smart trousers and women to wear smart skirts could discriminate against certain religions where females must cover parts of their body. Similarly, a dress code that restricts the wearing of religious dress or religious symbols will need a business or safety reason to justify it.

Policies such as non-visible tattoos may discriminate on the grounds of disability against those who have a severe disfigurement and use a tattoo to cover it. High heel requirements may also constitute disability discrimination against those with medical conditions who are unable to wear high heels.

The petition calling for requirements on females to wear high heels at work to be made illegal has continued to garner signatures. It is tabled for a debate in parliament at the beginning of March.

Kate Palmer is head of advisory at Peninsula