• International Workplace
  • 5 June 2018

Dress codes and discrimination: new government guidance

The Government Equalities Office has issued new guidance for employers who set dress codes and employees and job applicants who may have to abide by them.

This guidance, Dress codes and sex discrimination: what you need to know, has been written following a recommendation from the Parliamentary Women and Equalities Select Committee and the Petitions Committee. It sets out how the law might apply in cases of sex discrimination where an employer requires female staff to wear, for instance, high heels, make-up, hair of a particular length or style, or revealing clothing.

The publication of the guidance follows a recent case in which a receptionist was sent home from PricewaterhouseCoopers for declining to wear high heels. More than 150,000 people signed a petition calling on the government to make it illegal for employers to require staff to wear high heels.

Michael Ryley, Partner in the Employment, Pensions and Immigration team at Weightmans comments:

“Dress codes at work can be an emotive issue – but where does the boundary lie between legitimate concerns such as safety at work or the maintenance of corporate identity on the one hand and overt sexism on the other? One might expect there to be clear water between these extremes, but when you read that Aeroflot are reported to prefer selecting slim and attractive stewardesses on the basis that overweight staff would constitute a hazard in an emergency, it is all too easy to see how the distinctions can become blurred.

“A recent Parliamentary report found that employers do not understand their obligations in relation to staff dress codes, yet the Government has declined to legislate in response.”

The new guidance advises that the Equality Act 2010 (the Act) does not set out specific examples of practices that are unlawful, or definitions of behaviours that are ‘sexist’, ‘racist’ or ‘homophobic’ etc.  It sets out the legal framework, including a ban on sex discrimination and harassment, and it is ultimately for the courts to decide whether a practice is unlawful depending on the facts of each case.

A dress code could be unlawful, for example, if it requires female employees to wear high heels, with all the discomfort and inherent health issues these can cause, because it treats women less favourably than men.

But the potential for discrimination and potential harm caused to employees through dress codes does not stop at sex discrimination. When setting a dress code, the guidance says, employers should also have regard to any health and safety implications.  For example, if an employer requires staff to wear particular shoes (as part of a dress code rather than for personal protective equipment purposes), then they should consider whether this may make staff more prone to slips and trips or injuries to the feet.

In addition, where someone meets the definition of a disabled person in the Act, employers are required to make reasonable adjustments to any elements of the job which place a disabled person at a substantial disadvantage compared to non-disabled people. This could include not applying dress code requirements, where their impact is more onerous on a disabled employee.

Other areas to consider when applying dress codes are religious symbols – employers should not set dress codes which prohibit religious symbols that do not interfere with an employee’s work – and transgender staff. Transgender employees should be allowed to follow the organisation’s dress code in a way which they feel matches their gender identity.

The full guidance is available here.