• Tar Tumber
  • 27 January 2017

Discriminatory dress codes: Parliament calls for review of equality laws

Government should substantially increase the penalties available to Employment Tribunals to award against employers who implement discriminatory dress codes at work, according to a new parliamentary report, High heels and workplace dress codes. At present, it says, such penalties are not sufficient deterrent to breaking the law.

The report follows an inquiry that took place after a petition against high heels being compulsory in the workplace was started on parliament’s website and garnered 152,420 signatures. The petition was started by Nicola Thorp, who one day refused to follow a dress code imposed by the British recruitment agency she worked for that required females to wear high heels. Her refusal led to her being sent home without pay.

“The petition was started because of an individual’s experience, but it has become clear in the course of our inquiry that this was not an isolated incident – and nor is the problem confined to high heels,” says the report. “We heard from hundreds of women who told us about the pain and long-term damage caused by wearing high heels for long periods in the workplace, as well as from women who had been required to dye their hair blonde, to wear revealing outfits and to constantly reapply make-up.”

According to the report, the Government has said that the existing law is clear, and that the dress code that prompted this petition is already unlawful. Nevertheless, discriminatory dress codes remain widespread. It maintains that “It is therefore clear that the existing law is not yet fully effective in protecting employees from discrimination at work. We call on the Government to review this area of the law and to ask Parliament to change it, if necessary, to make it more effective.”

Parliament is of the opinion that the relationship between the provisions of the Equality Act 2010 and workplace dress codes is not widely understood: “The Government has said that it expects employers to inform themselves about their legal obligations and to comply with the law. This approach is not working. The Government must do more to promote understanding of the law on gender discrimination in the workplace among employees and employers alike.”

I remember tweeting about ’highheelgate’ when the Nicola Thorp story first broke – I even presented on dress codes as one of the key topics in our FM Legal Update session in 2016.  From my HR experience, it’s clear that some companies deliberately set sexist dress codes, whereas others may just not realise how discriminatory their dress code policies are.

At the risk of sounding sexist, would the typical male really understand how painful it can be for someone to wear high heels for several hours a day, every day? Would they understand the health issues that can be caused by ‘regular re-application’ of makeup on the skin – not to mention the potential time deficit involved! Likewise, would a typical female employee understand if the dress code required male employees to use aftershave or particular-smelling skin care products – what if these caused skin irritation?  Yet if policies are being set by someone not ‘thinking’ about the potential health or ‘sexist’ implications of the policy, companies can end up in trouble!

In addition, the issue here is that most of the ‘guidance’ is directed at female staff.  Listening to a debate on the radio yesterday, several male callers highlighted that they have to wear a shirt and tie every day, yet their female counterparts could wear whatever they wanted. Was this not discrimination against men?

Well, this has legally been tested through the courts – ten years ago the Employment Appeal Tribunal ruled that a male employee required to wear a collar and tie had not been discriminated against because women were required to ‘dress appropriately and to a similar standard’ too.  However, this does mean that dress codes should not be more rigorous for one gender over another, which is where the issue of high heels fits in – it is accepted within the parliamentary report that high heels can cause physical pain – the same cannot be said of wearing a tie! So, forcing women to wear high heels is arguably ‘less favourable treatment’ on the grounds of sex, and direct sex discrimination under the Equality Act 2010.

Yet having the legal Act in situ has not stopped companies from applying these deliberate or not-thought-through policies – women have declared how they have been asked to wear shorter skirts and unbutton their tops in order to ‘lure’ male shoppers in the retail environment; air hostesses have raised concerns about how ‘sexualised’ their uniforms are, compared to their male counterparts, whose uniforms simply ‘looked smart’; and Ms Thorp said she was ‘laughed at’ by her supervisor in front of colleagues when she compared her smart flat shoes with those of a male colleague.

The report further states that there is a widespread culture within employers who are ‘simply not following the law… either employers are not aware of the health implications… or that they are not that bothered’.  Companies take a risk that no one will take a claim against them – after all, it costs to make a claim nowadays! 

And it’s not just a sexist issue.  The report cites that transgender employees may feel very humiliated or degraded when ‘forced’ to wear certain clothes, footwear, or adopt a particular look.  The same applies when a company’s dress code impacts on an employee’s religious clothing, posing a possible religious discrimination risk.

The parliamentary report wants to address this by raising awareness for all employees on what their rights are; where they can get help; and also through educating employers to understand the impact of their dress codes on their workers.  The report also recommends punitive measures where employers don’t comply – injunctions could be applied to prevent employers forcing staff to comply with discriminatory dress codes; and also significant financial penalties where discrimination has occurred. 

The Government response and any changes in the law will inevitably follow… in the meantime, I would urge employers to review their dress codes with fresh eyes. Are you forcing someone to wear something they don’t have to?  Is this for health and safety or stylistic reasons?  If it’s for style, watch out – that’s one big trip hazard!