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Workplace dress codes have been in the spotlight recently, after a receptionist claimed she was sent home from work at a well-known corporate finance company after refusing to wear high heeled shoes.

Nicola Thorp, who was employed as a temporary worker by an outsourced receptionist firm, said she arrived on her first day in flat shoes only to be told she had to wear shoes with a two to four inch heel. Thorp claimed she was then laughed at when she asserted that this was discriminatory.  However, following the headlines and public backlash, the firm decided to scrap the controversial dress code.

While the requirement for women to wear high heels at work is fairly unusual, the majority of employers use some sort of dress code. This is understandable, as employers will wish to ensure that their employees project a professional and positive image of the company. With some employers dress code may be a matter of health and safety.

However, this serves as a useful reminder that employers should keep potential issues of discrimination in mind when formulating their dress code. Under the Equality Act 2010, it is unlawful for an employer to discriminate directly by treating an employee less favourably than others because of their sex or to discriminate indirectly by applying a provision, criterion or practice that disadvantages employees of one sex without objective justification. The courts have generally taken the approach that, as long as an even-handed approach is adopted by the employer in relation to the dress code (i.e. that it is not more onerous for one  gender than the other and  that is applied consistently), then it will not be discriminatory. A dress code which stipulates that members of one sex are required to wear a particular kind of clothing, while members of the other are not, will not necessarily mean that members of one sex are treated less favourably or put at a disadvantage. It will largely depend on the overall context of the relevant dress code.

For example, a dress code which requires men to wear a shirt and tie, but which requires women “to dress appropriately and to a similar standard”, may be seen by some as discriminatory against men, who have less choice or flexibility. However, such a dress code was previously considered by the Employment Appeal Tribunal, which decided this was not unlawful. It was said that the proper approach is to consider whether, applying contemporary standards of conventional dress, the level of smartness required by the employer could only be achieved for men by requiring them to wear a shirt and tie. If it could be achieved by other means then the lack of flexibility for men may suggest that males were being treated less favourably than females, as it would not have been necessary to restrain men’s choice of what to wear in order to achieve the standard of smartness required.

With regards to Ms Thorp, there is certainly a strong argument that the dress code applied would be seen as discriminatory. It is difficult to see how the requirement to wear high heels is even-handed in the context of a dress code. Clearly the requirement to walk around in high heels all day could cause considerable pain and discomfort and is far more onerous on women than on men. Furthermore, the objectives of such a dress code (which presumably centre on ‘smartness’) could still be achieved by wearing appropriate flat shoes and the lack of flexibility in this regard may also point towards less favourable treatment. Delving deeper there are arguments that such a requirement reinforces sexist stereotypes about the need for women to look “attractive” for the benefit of men in circumstance where far less emphasis is placed on men’s appearance. Although Ms Thorp did not pursue an Employment Tribunal claim, the negative publicity is clearly likely to be damaging in this instance.

Employers should also take into account wider issues of discrimination when considering their dress code. For example, there have been a number of high-profile cases over the years in which employees have been prevented from wearing particular items of clothing associated with a particular religion on the basis that it does not conform to the employer’s dress code. Often it will come down to whether the requirement of the dress code can be objectively justified as a proportionate means of achieving a legitimate aim, balancing the employer’s reasons for having such a dress code, against the impact on the employee. This is a key issue in the European case of Achbita dealing with a Belgian Company’s dress code which banned employees from wearing any visible religious, political or philosophical symbols in the workplace. This was relied upon by, the Employer, G4S to prevent a Muslim employee from wearing an Islamic headscarf. The Advocate General’s opinion has just been released in that case and it was found that such treatment did not amount to direct discrimination on the basis that the ban affected all employees equally and was not based on stereotypes or prejudice against any particular religion. The AG thought that the policy was a legitimate commercial choice given the broad range of clients to whom the Company was providing services and was both appropriate and necessary for achieving this objective. The AG’ opinion is not however binding on the European Court and it remains to be seen if this somewhat controversial approach will be followed.

Practical Implications?

It is inevitable that dress codes will vary from employer to employer, largely depending on the nature of their business, for example; whether there is a lot of face-to-face contact with clients/customers, or whether there are health and safety considerations. However, when formulating a dress code, it is important for employers to properly consider and make clear what the objectives of the policy are. Employers should also be careful to keep potential issues of discrimination in mind. Generally speaking, where the dress code is more flexible, it will give rise to fewer problems. Where an employee does raise such an issue, it is important to consider whether any exceptions should be applied to the dress code. However, it should also be borne in mind that an employer will not necessarily be acting unlawfully if it refuses a request. A balancing exercise should be carried out in relation to the reason for the dress code and the perceived disadvantage to the employee and it should be considered whether the objectives can be achieved in a way which accommodates the employee’s request.

Eric Gilligan, Partner and Rowan Alexander, Solicitor

Chambers UK 2018

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