No Heels Required? Keeping Your Workplace Dress Code Within the Law

In light of recent headlines regarding Nicola Thorp, a receptionist sent home from work without pay after refusing to wear high heels, many employers may be looking to review the dress code requirements they set for their staff.  Ms Thorp’s case shows that where a dress code is perceived to be discriminatory, an employer may face a barrage of adverse publicity in addition to leaving themselves open to legal action.  What steps can employers take to ensure that they keep their dress code requirements out of the headlines and keep themselves on the right side of anti-discrimination law?

The most important piece of legislation that an employer would need to consider when reviewing its dress code is the Equality Act 2010 – an act prohibiting discrimination against an individual on the grounds of their membership of one of a number of protected groups.  The grounds most likely to be relevant to an office dress code are sex discrimination and discrimination against an individual on the grounds of their religion.

It is important to note that discrimination can be either direct (where an individual is treated less favourably because they belong to one of the protected groups) or indirect (where a policy has a disproportionate impact on members of a certain group).  Applying this to Ms Thorp’s case, were she to succeed in a claim against her employer for sex discrimination, she would need to show either that the dress code’s requirement to wear heels was explicitly less favourable than the male dress code, or that the dress code for female employees disproportionately impacted her ability to do her job when compared with her male colleagues.

An employer looking for assistance in interpreting the Equality Act when revising its dress code would be well advised to consider the dress code guidance provided by Acas.  This expands on the requirements set down by the Act and provides clear advice on how an employer can set an appropriate, non-discriminatory dress code.  Some of the key points noted in the Acas guidance are:

  • Employers must avoid unlawful discrimination in any dress code policy.
  • An employer may have health and safety reasons for requiring certain standards.
  • Dress codes must apply to men and women equally, though they may have different requirements.
  • Reasonable adjustments must be made for disabled people.
  • Restrictions on religious dress worn by employees should be connected to a real business or safety requirement.
  • When a business is updating its dress code, it should seek to consider the reasoning behind it and consult with its employees as to what they feel would be appropriate, taking into account any employees who dress in a certain way for religious reasons.

Ultimately, the workplace dress code is an issue which has been shown to have the potential to put an employer in the headlines for the wrong reasons; however there are a number of practical steps that an employer can take to ensure that it avoids this outcome.  Any organisation which reviews its dress code using both the Equality Act and guidance from Acas before making any necessary changes would be unlikely to find itself in a position where it was facing allegations of discrimination either in the press or in the form of legal action.

David Ward

David Ward

David Ward
Solicitor
Employment Team
DWard@LawBlacks.com
0113 227 9262

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