Workplace dress codes: time for a makeover?
In June 2017, a woman claimed she was sacked from her job at a bar in Hull after refusing to wear a bra to work. The bar denied the allegations, claiming no one had been dismissed, but the woman claimed she had been let go after inappropriate sexual remarks were made and she was told not to return if she was not wearing a bra.
This comes on the back of the heavily publicised case in January 2015 of Nicola Thorp, who was dismissed from her London office job for refusing to wear high heels. Thorp initiated a government petition calling for a reform of outdated workplace dress codes. Six months and over 150,000 signatures later in June 2016, the Government responded asserting simply: “Company dress codes must be reasonable and must make equivalent requirements for men and women.” One might have expected a more comprehensive response, specifically addressing the effectiveness of existing laws. However, the Government neither addressed the issues in any meaningful sense nor proposed solutions.
The Government’s lacklustre response prompted the UK Members of Parliament Petitions Committee to launch an investigation into workplace dress codes. The final report, produced in conjunction with the Women and Equalities Committee, revealed that women continue to face discrimination, both direct and indirect, in the workplace. The overarching aim of the report was to determine whether it should be lawful for employers to require female employees adhere to certain stereotypical standards of appearance. The report sets out a well-supported position and makes specific recommendations.
Such issues of gender discrimination in the UK are regulated by the Equality Act 2010. Although the 2010 Act aims to eliminate discrimination, indirect discrimination for example, where a particular workplace practice is imposed, can be justified if it is a proportionate means of achieving a legitimate aim. The legislation gives Employment Tribunals considerable discretion in this area, but, more and more, employers need to be able to provide clear evidence that imposing a particular practice is truly justifiable if they aren’t to be found wanting in the eyes of the law.
Despite the existence of anti-discrimination laws, many employers continue to require women to dress and look a certain way. Many female workers are still pressured to wear high heels, makeup, and certain types of clothing, calling into question the Equality Act’s effectiveness in protecting women, in particular, from discrimination. The Committee’s report emphasised the detrimental effects of wearing high heels for prolonged periods on both health and wellbeing. Medical evidence, provided by the College of Podiatry, describes the numerous disabling effects of high heels, including altered foot mobility and reduced balance. Furthermore, such dress code regulations may promote the sexualisation of workers by clients or management.
In the UK, the influential Advisory Conciliation and Arbitration Service (ACAS) has produced guidance for employers and employees on dress codes and appearance at work. While their guidance may not have strict legal status, it is persuasive and seen as a benchmark of best practice. On dress codes and high heels in particular, ACAS guidelines state company dress policies should not discriminate more heavily against one gender.
The apparent failure of the legislation to fully eliminate certain discriminatory practice underlines the need for more to be done. The Parliamentary Committee’s report proposes that Government take action to improve the effectiveness of the Equality Act, either through statutory review, increased financial penalties, or nationwide awareness campaigns detailing the rights of employers and employees. Increased financial penalties would act as disincentives to employers to breach the law. Campaigns would assist workers in understanding and enforcing their rights. The Government could also consider more detailed guidance on what might amount to legitimate aims when framing company dress codes. These might be restricted to health and safety concerns, to project a uniform image, or a necessary public image. This could minimise the risk of abuse.
The United Kingdom could look to Canada when considering reform to protect workers from discrimination. The provincial government of British Columbia has recently done away with discriminatory workplace rules requiring women to wear high heels. The legislation passed there amended footwear rules outlined in the Workers’ Compensation Act. The aim of the new regulation is two-fold: to prevent employers from setting gender-based footwear requirements and to protect the health and safety of female workers.
Although this is a small change, it shows the potential of further reform in the UK and elsewhere. The continued existence of stereotypical and sexist ideas of how women should appear in the workplace is evident in Canada and the United Kingdom. However, on this issue, the United Kingdom still has some way to go before it can show a truly acceptable face of good practice in the workplace.
Meghan Vaillancourt a graduate of Queen's University, Canada and is currently a Graduate LL.B. student at the University of Edinburgh.
Chris Phillips is a partner at Loch Employment Law. For further information please contact us at firstname.lastname@example.org or call us on 01892 773970 or visit www.lochemploymentlaw.co.uk