Dress Codes & Discrimination in the Workplace

The Wilkes Partnership, Employment Law Birmingham Solihull

The issue of discriminatory dress codes recently came to public attention when a petition calling for it to be made illegal for employers to require women to wear high heels at work received over 150,000 signatures.

The petitioner was a Ms Nicola Thorp, a temporary receptionist working at PwC, who was sent home without pay when she refused to wear high heels at work.

The House of Commons Petitions and Women & Equalities Committee (“Committee”) conducted a detailed investigation into the topic of dress codes and discrimination, and produced a report in late January 2017. The Committee found that employers, particularly in certain sectors of the economy, implemented discriminatory dress codes that sexualised and exploited young women. It has called for the Government to strengthen the law in this area.

Pam Sidhu, Head of Employment at Wilkes, comments: “Most employers specify some form of dress code for their employees. This will usually be based around legitimate concerns such as health & safety and the projection of a professional image. So long as such dress codes are sensibly drafted and allow for flexibility in certain cases, they should be legally compliant. However, there are circumstances where a dress code can be found to be discriminatory on grounds such as gender, religion or disability. As borne out by the recent report, the Equality Act already gives some protection to employees, but the practical application of the law is sometimes unclear for employees and employers. Also, some employers seem unaware of the implications of the Equality Act.”

As the law currently stands an employer will be guilty of direct discrimination if it has a dress code that is “less favourable” to one gender. For example a tribunal has found a requirement for women to wear low cut tops at work to be discriminatory.

An employer can also be found to be indirectly discriminatory where there is a dress code that applies to everyone in the same way but has a worse effect on some employees than others. Examples include dress codes that restrict the ability of employees to wear items associated with their religious beliefs. In order to protect themselves in these situations, employers will need to be confident they can demonstrate that their dress codes constitute a proportionate way of achieving a legitimate objective (for example, safety in the work place).

The Committee’s investigation found that whilst the rules relating to discriminatory dress codes are clear in principle there is often some difficulty in their practical application. It was noted that there is often uncertainty as to what constitutes less favourable treatment. The example of a requirement for women to wear make-up was identified as being problematic, as conventionally many women wear make-up and therefore less favourable treatment may not be easy to prove.

Significantly, the report commented that the 2013 increase in tribunal fees has caused a substantial reduction in the number of “test cases” making their way through the tribunal system. Consequently, there has only been limited opportunity for the building up of a body of cases that flesh out the law on discrimination in the workplace.

The Committee recommended an increase in the financial penalties applicable to employers who are found to have breached anti-discrimination law, so that employers pay more attention to the law when drafting dress codes. This would also encourage employees who have been discriminated against to bring claims.

It was also suggested that employment tribunals be given the power to award injunctions. The rationale being that it would make it quicker and easier for a claimant to resolve an issue. It is not clear how such injunctions would work in practice

Pam Sidhu further comments: “The report highlights some of the uncertainty in anti-discrimination law surrounding employment dress codes and the need to educate employers. Employers need to be vigilant to ensure they do not inadvertently fall foul of the law. The report also shows that there is now some appetite for changes to the system surrounding employment tribunals in order to encourage more claims.”

To discuss anything arising from this update, please contact Pam Sidhu or any member of the Employment Team on 0121 233 4333.