Dress codes requiring female workers to wear high heels – a tall order?
You may have seen the press coverage last year (and our previous article) about Nicola Thorp who worked as a temporary receptionist. Her agency, Portico, had a dress code in place at the time which required female staff to wear heels of between two and four inches. When Ms Thorp arrived for work wearing flat shoes, and refused to go and purchase a pair of heels, she was sent home without pay.
Ms Thorp set up a petition on the Government website, calling for it to be illegal for employers to require female staff to wear high heels at work. The petition gained more than 150,000 signatures over 6 months.
Prior to a parliamentary debate on the issue, which is due to take place on 6 March 2017, the House of Commons Petitions Committee and the Women and Equalities Committee (the Committee) have recently published a joint report “High heels and workplace dress codes”.
The Committee undertook an inquiry and heard evidence from Ms Thorp and others. They also considered evidence from a web forum, set up for members of the public to share their experiences. They looked at medical evidence and concluded that wearing high heels is damaging to female workers’ health, and that those aged over 40 are especially at risk. The report noted that such policies put some disabled workers at a particular disadvantage, and may even stop people applying for a job. The Committee also concluded that certain dress code requirements, such as wearing makeup or skirts above the knee, can make some female workers feel uncomfortable and sexualised by their employer.
The report noted that whilst employers are required to undertake health and safety risk assessments, many are simply not thinking about the risks of wearing high heels as part of this. Portico confirmed that they had not undertaken a health and safety assessment of their requirement to wear high heels.
The Committee also considered evidence that was critical of the existing Acas guidance on dress codes, and recommended that the Government Equalities Offices works with Acas and the Health and Safety Executive to publish updated guidance by July 2017. In its report, the Committee says that the updated guidance should deal with dress code requirements such as “manicures; hair (colour, texture, length and style); hosiery; opacity of workwear; skirt length; and low-fronted or unbuttoned tops”.
As the case of Nicola Thorp highlights, it may be that the threat of reputational damage will itself lead to change – Portico have since reviewed their dress code policy and made substantial changes to it, including removing the requirement to wear high heels, and introducing gender-neutral guidelines.
At the end of last year it was reported in the press that female workers at the Dorchester hotel in London had been given a list of grooming rules, including: not to turn up for work with oily skin, bad breath or garish makeup, and to ensure that their fingernails were manicured. The hotel said that a copy of their grooming standards were sent to all new applicants, both men and women, prior to interview, although it is not clear what the equivalent policy for the male staff was.
The Government’s initial response to Nicola Thorp’s petition said that the dress code in her case was already unlawful under the Equality Act 2010. However, the report noted that the law was not working in practice to protect employees, and that employers do not properly understand how the law applies in practice.
For example, to make out a claim for direct sex discrimination, a worker must be found to have been treated less favourably because of their sex. Often employers do have different dress codes for men and women but, as we previously reported, the standards expected should be equivalent so as to avoid accusations of less favourable treatment. The difficulty arises because it is not always clear what is less favourable treatment, for example, is a requirement that female workers wear make up less favourable treatment, when many women do wear make up?
The Committee recommended that the Government could consider making changes to the less favourable treatment test to give more weight to the subjective element i.e. the employee’s own feeling of being discriminated against.
In order to succeed in a claim for indirect sex discrimination, a worker would need to show, for example, that a dress code applied to all staff puts women at a particular disadvantage. An employer will have a defence to a claim for indirect sex discrimination if it can show that its policy can be justified as a proportionate means of achieving a legitimate aim. The Committee suggested that the Government consider defining what legitimate aims are, and proposed the following – health & safety, to establish a truly necessary public image (e.g. the judiciary), to project a smart and uniform image, and to restrict dresses or insignia which may cause offence.
The report noted that Portico had not taken legal advice on its dress code, which had been in place for eight or nine years, as it had not occurred to anyone that it might be discriminatory. Although Nicola Thorp did not bring a discrimination claim, had Portico sought legal advice on their dress code then a lot of adverse publicity may have been avoided.
Moving away from gender based dress codes and towards more gender-neutral ones would reduce the risk of discrimination claims, promote a more inclusive approach to those workers who do not conform to gender stereotypes, and also reduce the risk of damage to the employer's reputation.
Do you need help with drafting or amending a dress code? We can help! Please contact any member of the Pure Employment Law team (01243 836840 or email@example.com).