31 May 2018 by

Can an employer tell its employees what (not) to wear?

Dress codes have gained widespread media coverage over the last 18 months.

We started with the case of Nicola Thorp, a corporate receptionist at Portico, sacked for refusing to wear high heels. Ms Thorp was sent home on her first day at work for refusing to wear shoes with a “2 inch to 4inch heel”.

Ms Thorp launched an online petition seeking to make it illegal for employers to force women to wear heels at work. The petition gained 150,000 signatures and triggered an inquiry into dress codes.

Last week, the Government Equalities Office published new guidance on dress codes at work and sexual discrimination.

We’ve read through the guidance and much of it is common sense. That being said, dress codes can be a contentious matter within the workplace and disputes over how they are applied arise fairly frequently.Here are our top 5 key points to help you navigate this thorny issue:

  1. As the law stands, employers can dismiss staff who fail to live up to “reasonable” dress code demands, as long as they’ve been given enough time to buy the right shoes and clothes. The new guidance does not change this, and confirms that dress codes can be a legitimate part of an employer’s terms and conditions of employment.
  2. Dress policies for men and women do not have to be identical, but standards imposed should be equivalent. There must be similar standards and equivalent rules for both male and female employees.
  3. Dress codes must not be a source of harassment by colleagues or clients. Expecting women (or men) to dress in a provocative manner is likely to encourage and increase the likelihood of that employee experiencing harassment at work.
  4. It is best practice to avoid gender specific prescriptive requirements, such as the requirement for women to wear high heels. Whilst not illegal per se, with all the discomfort and health issues that heels can cause, it is likely to give rise to discrimination on the basis that the requirement treats women less favourably than men.
  5. Consider the reasoning behind a dress code. A legitimate dress code, for example a hard hat in construction, or smart business attire in a client facing office, is entirely different to a dress code that puts staff in an uncomfortable position.

The tide is certainly changing. Indeed, we have seen British Airways agreeing to allow new female recruits to wear trousers, an employment agency, Reed, being forced to remove an advert from a London bar for applicants with “physical attractiveness” and a requirement that female applicants “must be comfortable wearing black heels”.

The Government’s paper provides some useful guidance. However, given the lack of cases in this area it can still be difficult to determine what attire could constitute sex discrimination.

If you have any questions relating to dress codes or discrimination at work, please contact one of our Employment Solicitors here.

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