Dress Sense – Buttoning Up On Discriminatory Dress Rules
by Amy Cousineau Massey, 26 January 2017
In December 2015, agency-worker Nicola Thorp was sent home from a city job because she refused to wear high heels. Her refusal was contrary to agency policy on dress code. The company have tried to back pedal – disassociating from Ms Thorps employment agency Portico.
Following this treatment Ms Thorp lodged a petition that garnered over 150,000 signatures. The petition called for the government to make it illegal to require women to wear high heels at work. The topic was debated in parliament and parliamentary committees for Petitions and for Women and Equalities have just released a joint report.
Steele Raymond’s Head of Employment Law and solicitor Amy Cousineau Massey discusses the implications on employees and businesses.
What does the report say? Does the law need to be updated?
The short answer is no - the Equality Act 2010 contains provision against discrimination and women are already a protected class.
In other words, if an employer insists on an action that puts women at a disadvantage, that will be unlawful sex discrimination, unless it can be objectively justified.
The current legislation is more flexible than a simple blanket ban. However, the report does identify that the application of the Equality Act is falling short and that many companies still operate discriminatory dress code policies.
In the case of Nicola Thorp, Nicola would have been able to bring a challenge that being forced to wear high heels would be discriminatory. There is a clear physical disadvantage to wearing high heels including discomfort and possible injury. However, Nicola was not protected on the day she was sent home – she would only be protected if she asserted her rights subsequently.
Under the current legislation an employer can enforce its dress code if it is justifiable. In Nicola’s case there seems little justification when an equally smart look could be achieved with dressy flat shoes.
The dress code policy in this instance appears biased towards sex appeal rather than a smart look. Of course the look of certain garments will always be subjective, and here we are talking about how subjective looks can be objectively justified. This is always going to be a difficult exercise. The report calls for greater clarity and public awareness.
Sex discrimination is not the only risk in a scenario like this. An employee with arthritis, for example, might not be physically capable of wearing high heels all day long. There would be a fairly clear cut claim of disability discrimination if that employee were not allowed to wear flat shoes in this circumstance.
The issue was brought to light by the Thorpe case however once MP’s delved into the matter a multitude of other examples were revealed.
Should the law be updated according to the report?
The report identifies a need for those facing discriminatory dress codes to have more remedies available and to be able to enforce their rights more vigorously. The report suggests that tribunals should be given wider powers including the ability to apply financial penalties to deter unlawful dress codes.
This flies in the face of the current tribunal regime that imposes fairly hefty fees for a Claimant alleging discrimination, currently £1,200. Presently this means that the cost of bringing a discrimination claim relating to an issue of dress code could cost more money than a claimant would stand to win.
If the report’s recommendations are followed this could be a first effort at rebalancing the employer friendly move of introducing tribunal fees – by upping the stakes and rewarding employees who put their money where their mouth is.
In light of the report, what should an employer do?
In the first instance, dress code queries by employees should be taken seriously and reviewed carefully in light of the substantive reason for having the particular rule.
The more flexible an employer can be the better.
Failing that, employers should seek legal advice in relation to difficult dress code queries. This is a topic that is now firmly in the public eye and will be the subject of future public awareness campaigns and potential changes to the awards that a tribunal can make.