High Heels, Crucifixes and Tattoos - Do you Know Your Dress Code Duties, as an Employer?

Legal cases involving dress codes at work – whether they are about high heels, religious-themed jewellery or tattoos - always grab headlines, and they can leave some employers feeling embattled and nervy.

The Government has just issued guidance for employers on this topic entitled ‘Dress Codes and Sex Discrimination – What You Need to Know’, the primary purpose of which is to guide employers against imposing dress codes which directly or indirectly discriminate on grounds of sex.

It is, of course, an employer’s legal right to include dress code stipulations into their terms and conditions of employment and many employers legitimately strive to achieve a professional ‘look’ among its workforce. However, what is important is that such rules do not discriminate on grounds of sex, or indeed any other protected characteristic, such as religion or disability.

The impetus for the Government publishing the Dress Code Guidance came from a inquiry by the Women and Equalities Select Committee following into the case of a receptionist who was sent home for wearing flat shoes. Feelings ran high on this case, with some calling on the Government to impose stricter penalties on employers that enforced discriminatory dress codes. The government rejected any recommendations that would require legislative change. In particular, it rejected the recommendations that increased financial penalties should be imposed on employers found to be in breach of discrimination laws and considered a new injunction power to be disproportionate. However, what was promised was this new Guidance.

The key provisions of the Guidance for employers to bear in mind are:

• Whilst dress policies for men and women do not have to be identical, ‘the standards imposed should equivalent’.  In other words, there must be similar rules laid down for both sexes.
• Dress Codes must not be the source of or lead to harassment by colleagues or customers.
• Gender-specific prescriptive requirements should be avoided.

Applying this guidance in practice, a dress code could legally require employees to dress ‘smartly’ in a two-piece suit with low heels for both sexes. However, any requirement to wear makeup, manicured nails or a particular type of skirt is likely to be unlawful.

Employers are always nervous about the grey areas to be found within specific scenarios. But the key is to ask yourself whether the underlying principle is fair and to ensure that neither men nor women are held to a higher standard of dress.

The Guidance also briefly touches on other areas of discrimination. In particular, it reminds employers:

• That transgender employees should be allowed to follow the organisation’s dress code in a way which they feel matches their gender identity
• To make any necessary reasonable adjustment to accommodate disabled workers; and
• That as far as religious clothing is concerned, policies which prevent employees wearing things that manifest their beliefs are likely to be deemed indirect discrimination unless the policy can be objectively justified.

In any case, a savvy employer will consult with employees, unions and staff representatives to make sure they are happy with the policies before they are set in stone.

For more information please contact our specialist Employment team here, or telephone one of our local offices below.

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