In recent years there have been many employment law cases both in the UK and across Europe about what is “appropriate work attire”. The most high profile of these have been to do with an employee’s desire to express their religious beliefs through the wearing of headscarves or crucifixes at work. In such cases a balance must be struck between the employee’s right to manifest their religious beliefs and an employer’s right to impose a dress code on its employees.
Dress codes that result in employees being treated less favourably than their colleagues because of a protected characteristic (such as religion or belief, sex or race) are unlawful whereas those in place for health and safety reasons are generally permitted. However, the question then arises, as to how prescriptive an employer’s dress code can be where its requirements do not amount to discrimination and the employee is seeking to express themselves and their identity rather than a religious belief.
Nichola Thorp – High heels
In December 2015 Nichola Thorp attended the first day of her new job as a temporary receptionist at PricewaterhouseCoopers and was sent home for not wearing shoes with heels between two and four inches in height, which was a breach of the PwC dress code. This incident attracted a significant amount of media attention and a petition was signed by more than 150,000 people calling for the law to be changed to prevent employers making it mandatory for women to wear high heels for work. That petition resulted in an inquiry being carried out by the House of Commons’ Women and Equalities Committee and the resulting report was published in January 2017. The report concluded that a requirement on women to wear high heels at work could be damaging to their health and wellbeing and could, along with other dress code requirements, have the effect of making women feel sexualised and uncomfortable in the workplace.
Three main recommendations were made by the inquiry:
a) there should be an investigation in to the number of claims being brought in the Employment Tribunal relating to dress codes, how many of those are successful and how many are successfully defended on the basis that the policy is a proportionate means of achieving a legitimate aim.
b) consideration should be given to changing the law on discrimination in order to make the test of direct discrimination more subjective by giving the employee’s perception of the dress code more weight when deciding whether or not it is discriminatory and to create a defined list of legitimate aims in order to limit the arguments put forward by employers; and
c) there should be an awareness campaign to ensure that workers know their rights in respect of the standards of dress an employer can impose in the workplace.
In April this year the Government rejected the first two recommendations but have carried forward the proposal for an awareness campaign and the Government Equalities Office is going to work closely with ACAS, the Equality and Human Rights Commission and the Health and Safety Executive (HSE) to explore the options for making this possible. Their response is due this summer and is supposed to consider not only the requirement to wear high heels in light of both anti-discrimination and health and safety at work laws but also requirements in respect of make-up, hair, hosiery, skirt length and low cut tops, amongst other things.
However, one thing that will not be part of the campaign is the requirement on men to be clean shaven at work. Recently The Guardian published an article about a construction company who have banned its male employees from having beards other than for medical or religious reasons. The justification behind this policy is that beards prevent dust masks fitting properly and therefore reduce their effectiveness. It has long been the case in the catering industry that men with beards must cover them up in order to prevent hair getting into food and as such, health and safety considerations regarding beards are not new to the employment law sphere but is extending this policy to the construction industry excessive and “penny pinching” as alleged by UNITE? Or is it a step taken to genuinely protect the health and safety of employees?
The HSE are clear in their view that having a beard prevents standard dust masks from creating a seal around the nose and mouth and therefore creates a health and safety risk. Although there are alternative products on the market these are likely to be more expensive and therefore given the current fashion for beards a ban on facial hair, other than for religious or medical reasons, is a more cost effective way of protecting the health and safety of employees.
So how does this relate to a requirement to wear high heels at work and why do some organisations still have dress codes in which women are required to wear heels of a certain height?
The answer to that question is probably aesthetics. It appears that some organisations don’t believe women can look professional unless they wear heels despite the fact that there is a wealth of research suggesting that wearing high heels for prolonged periods of time can cause health problems ranging from corns and calluses to more serious and long term issues such as back problems and osteoporosis. On that basis, it seems unreasonable for women to be forced to endure footwear that could cause long term health problems, but crucially is it discriminatory?
In my view it could be, but as with a lot of Employment Tribunal claims it will come down to the facts of the case and the way it is pleaded. If the claim was pleaded on the basis that a requirement for women to wear high heels amounts to less favourable treatment than a comparable male employee because it unnecessarily puts their health at risk, then there might be a chance that a Tribunal could find it to be directly discriminatory. To date, the case law on dress codes has centred on policies relating to the length of a man’s hair or the requirement to wear a collar and tie. However, the difference in this case would be the health and safety implications, subject to appropriate evidence being adduced.
In my experience dress codes are not the type of policy that are regularly reviewed as they are not normally contentious. However, now may be the time to dust off your dress code policy and see whether it really is fit for purpose or whether it opens up your business to unnecessary risks. These are my ideas about how to ensure your dress code minimises the legal risk to your organisation:
• Ensure the dress code applies equally and have equivalent standards for everyone.
• Ensure that any requirements can be objectively justified and that there is not a less discriminatory way of achieving the same aim.
• Take into account any health and safety or religious implications of the dress code and be prepared to make adjustments where necessary.
When it comes to the issue of shoes and professionalism, the safest bet is to replace a requirement for women to wear high heels with a requirement that all employees wear smart shoes irrespective of gender unless there is a medical reason not to.