Dress Codes Update

The Government has issued guidance on workplace attire off the heels, as it where, of the case of Nicola Thorpe - a temporary worker who was sent home unpaid from accountancy firm PwC for refusing to wear high heels, and raised a petition demanding that “women have the option to wear flat formal shoes at work”. Further to our blog in 2016 the following is the latest update.

The Government did not consider that the law needed to be changed, but its guidance highlights the importance of ensuring that employers, employees and job applicants have a clear understanding of the dress code requirements of the workplace, and that they are compliant with the UK’s discrimination legislation.

What does the guidance say?

There is no requirement for dress codes for men and women to be identical – but standards imposed should be equivalent, with similar rules laid down for both men and women. Gender specific requirements, such as a requirement to wear high heels, skirts or make-up, or have manicured nails or certain hairstyles, are likely to be unlawful. Transgender employees should be given a choice as to which gender aspects of a dress code they wish to identify with.

The requirement for employees to ‘dress smartly’ is not unlawful if it applies equally to all employees. For example, all employees can be expected to wear a ‘two piece suit’, with women having the option to wear a skirt. The same dress code can become discriminatory if, for example, female employees are expected to wear short skirts or particular hosiery.

There will be inevitable subtle variations. In the above example, men may be expected to wear ties and be clean shaven as part of a corporate image the employer seeks to promote. This would not amount to less favourable treatment, provided that the standards expected of women are at an equivalent level.

The guidance refers to the employer’s duty to consider the health and safety of staff, providing the example that if an employer requires staff to wear particular shoes (as part of a dress code rather than for personal protective equipment purposes), then they should consider whether this may make staff more prone to slips and trips or injuries to the feet.

Dress codes must not prohibit employees from expressing their faith through their clothing/wearing of religious symbols. Any prohibition by an employer must be based on a
legitimate business aim. For example, an employee wears loose clothing to reflect their faith, the employer may have a legitimate health and safety concern. They may refuse such attire if the employee operates machinery, which loose clothing may get entangled in.

Particular dress codes may be dis-applied for disabled employees if it would place them at a particular disadvantage. This is part of the employer’s on-going duty of reasonable adjustment pursuant to the disability discrimination legislation.

What does this mean for employers?

Employers should review any existing policies on dress to ensure they are in accordance with the guidance. If there is currently no such policy, consideration should be given as to whether a policy should be introduced to meet the needs of the business and provide clarity.

The guidance states that consulting employees and, where they are recognised, 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.

What does this mean for employees?

It remains that employees have a right not to be discriminated against unlawfully in relation to the way they are required to dress at work. Reference to the new guidance will help employees to identify whether particular requirements are unlawful or not.

The complete guidance can be accessed here