Is it discrimination to require an employee to wear high heels?

We reported last year on the Government response to the House of Commons and Equalities Committee report “High heels and workplace dress codes” which followed a petition initiated by a receptionist who was sent home from work for wearing flat shoes.

The Government Equalities Office has published new guidance for employers who set dress codes and for employees and job applicants who may have to abide by them, “Dress codes and sex discrimination – what you need to know”. Key aspects of the guidance include:

Dress codes can be a legitimate part of an employer’s terms and conditions of employment, but it is important that a dress code does not discriminate.
Dress codes for men and women do not have to be identical, but standards imposed should be equivalent. There must be similar or equivalent rules laid down for both male and female employees. Any less favourable treatment because of sex could be discrimination.
Dress codes must not lead to harassment by colleagues or customers, so any requirement for a woman to dress in a provocative manner is likely to be unlawful.
It is best to avoid gender specific prescriptive requirements, for example, the requirement to wear high heels. Any requirement to wear make-up, skirts, have manicured nails or wear hair in certain styles is likely to be unlawful, assuming there is no equivalent requirement for men. A dress code that requires all employees to “dress smartly” would be lawful, provided that the definition of “smart” is reasonable.
Consulting employees and trade unions over any proposed dress code or changes to an existing code will help ensure that the code is acceptable to both the organisation and its staff.
Employers should also have regard to any health and safety implications of particular dress codes, for example, particular shoes (which are not for personal protective equipment purposes) may make staff prone to slips and trips or injuries to the feet.
Where the impact of a dress code is more onerous on a disabled employee, employers should consider their duty to make reasonable adjustments to any elements of the job which places a disabled person at a substantial disadvantage to non-disabled people.
Transgender employees should be allowed to follow the dress code in a way which they feel matches their gender identity.
Employers should not set dress codes which prohibit religious symbols that do not interfere with an employee’s work.

Comment

Many employers will not be surprised by the principles set out in the guidance, but whether it achieves the aim of providing sufficient clarity for employers on the complex issue of dress codes and discrimination, time will tell. As the guidance points out, discrimination and harassment are prohibited by the Equality Act 2010, but “it is ultimately for the courts to decide whether a practice is unlawful depending on the facts.” Employers implementing or updating their dress codes should consider seeking advice to ensure that they do not fall foul of their obligations.

24 May 2018

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