It may be reasonable for an employer to expect and require workers to dress professionally for work particularly in client/customer facing sectors. In fact, it is not unreasonable to expect men and women to dress differently by virtue of their sex.
However, refusing (and being punished for refusing) an employer’s request to wear heels that are between 2 and 4 inches high is not likely to be an issue encountered by men in the workplace. It was an issue Nicola Thorpe (a Receptionist) was confronted with when she was sent home without pay by her employer for refusing to wear high heels!
On 25 January 2017, the House of Commons Petitions Committee and the Women and Equalities Committee (the Committee’s) published its conclusions in a report called High heels and workplace dress codes’ (the Report) following an investigation into an online petition Nicola Thorpe submitted requesting that dress codes requiring women to wear high heels to work be illegal. As part of the Committee’s investigations, they interviewed some 700 individuals who all gave stark examples of employers asking workers to wear revealing clothes, dye their hair, re-apply make up during working hours and wear high heels, to name but a few.
The Equality Act 2010 (EqA) was introduced to prohibit discrimination because of a protected characteristic such as gender, sex, religion either directly (where an employer treats a worker less favourably) or indirectly (where an employer operates a provision, criterion or practice that places one group of workers at a particular disadvantage to another group). Unlike direct discrimination, an employer can defend indirect discrimination where such a practice can be objectively justified, such as for health and safety reasons.
The Committee’s Findings
In response to Ms Thorpe’s petition, the government said the EqA currently adequately protects female workers from discriminatory dress codes.
However, the Report suggests otherwise and recommends significant changes to current laws on the basis they do not go far enough to adequately protect workers.
As a starting point, the Report concluded that there is damage to a worker’s health and well-being as well as an impact on performance at work physically where they are required to wear high heels. This is quite a straight forward conclusion. However, it also concluded that a dress code of this nature (or similar) left female workers feeling humiliated and sexualised in comparison to their male co-workers.
While there have been cases on the issue of dress code with reference to religion for instance, the same cannot be said for sex discrimination arising from a high heel’ dress code. The concern is that this is because workers feel too insecure to raise issues that are quite delicate and personal in nature.
The relevance of the Report for employers
It’s likely an employer would struggle to justify the requirement for a female worker to wear heels, to project a smart image for instance, when the same objective could be achieved by a women in smart flat shoes.
Despite the Report’s findings, there is unlikely to be significant changes to the law but more likely amendments to legislation that perhaps seek to financially penalise businesses for discriminatory treatment.
In the meantime, an employer is likely to be in breach of the EqA where they require a female worker dress in a way that is not equal to a male co-worker and which places them at a detriment, either in terms of comfort or because they feel sexualised by such a practice.
This is an area that has and will continue to attract scrutiny and media attention, which is all the more reason for businesses to be wary of the pitfalls even in the most well intended dress codes policies.
Awareness is therefore essential to avoid claims under the EqA and adverse publicity.
The Report has recommended that ACAS produce detailed guidance on dress codes in July 2017.
A parliamentary debate on this topic is scheduled this month with an expected published response in May.
Without delay, businesses should review all implied and express dress code policies.