25th January 2017
High Heels at Work and Discriminatory Dress Codes: An Employer’s Guide
The Petitions Committee and Women and Equalities Committee have published their report "High heels and workplace dress codes", revealing the troubling experiences of workers affected by discriminatory dress codes.
The inquiry was triggered by a petition started by Nicola Thorp, after she was sent home from work for refusing to wear high heels. The Government has said that the dress code imposed on Nicola Thorp was unlawful but the Committees heard that requirements for women to wear high heels at work remain widespread. (The employer in Ms Thorp’s case has since changed its dress code to allow women to wear flat shoes at work). Ms Thorp is calling for the law to be amended so that “gender neutral” dress codes become the norm.
Is a “gender neutral” dress code required by equality legislation?
Not according to Cartwright King’s Head of Employment Law, Deborah Scales, though she does agree with the MPs’ Committees view on high heels.
“I think that most people would agree that the requirement for women to wear high heels at work is out dated and sexist and it will almost certainly breach the Equality Act 2010. S13 of the Act prohibits an employer from treating a worker “less favourably” because of one of their “protected characteristics” such as sex, religion or belief, disability or gender re-assignment. Requiring women to wear high heels at work, which can be uncomfortable, restrictive and potentially damaging to health, is a more onerous requirement that is not imposed on men. That means women are treated “less favourably” and unlawful discrimination has occurred.”
That said, the courts do accept that an employer’s wish to present a certain corporate image is a legitimate aim and a balance needs to be struck between that and the worker’s right not to be discriminated against. In the leading case of Smith v Safeway PLC the Court of Appeal decided that Mr Smith, a man with long hair, was not discriminated against by a dress code that required men to have their hair cut above their collar, even though this policy did not apply to female staff. He worked on the deli counter and the Court accepted Safeway’s argument that customers would be put off buying from a man with long hair. The key principle from this case is that a dress code which has different requirements for men and women is not necessarily discriminatory as long as it applies conventional standards of dress to both. There was nothing particularly onerous about requiring a man to cut his hair according to conventional standards and therefore he was not treated “less favourably” than his female colleagues.
Unsurprisingly, the waitress who sued her employer in the employment tribunal for requiring her to wear a low cut top at work won her discrimination claim, Smith v Rees. It was an onerous requirement not imposed on male waiters.
Dress Codes and Religion and Belief Discrimination
Dress codes can become more complex when issues regarding religious dress and symbols are involved. Indirect discrimination can occur when a policy – for example no religious symbols to be worn at work - applies to all staff equally but disadvantages one particular group more than others. Employers can defend a claim of indirect discrimination if it can show its policy is a “proportionate” way of achieving a “legitimate aim”. Look what happened to two Christian employees who were prevented from wearing their crucifixes at work. Along with other Claimants they took the UK to the European Court of Human Rights for failing to protect their right to manifest their religion under Article 9 of the Convention, Ewedia & Others v UK. Ms Eweida, a Christian who worked on the British Airways check out desk, won her case in Europe but the nurse lost. The nurse’s case failed for two reasons: her employer’s health and safety requirements were a legitimate aim trumping the nurse’s rights and, besides, her employers had allowed her to wear her crucifix as a brooch on her uniform which the courts said was a reasonable accommodation.
Recommended steps for employers:
It is safe and indeed highly recommended to have a dress code promoting a positive and professional image providing it:
- Respect the needs of men and women from all cultures and religions;
- Makes any adjustments that may be needed because of disability;
- Takes account of health and safety requirements; and
- Helps staff and managers decide what clothing is appropriate to wear to work
The petition to make it illegal for a company to require women to wear high heels at work had over 152,000 signatures by 25 January 2017, and will be debated in Parliament on Monday 6 March.