How can employers avoid “dress code” discrimination?
The recent high profile case widely covered in the media regarding dress code policy should be a prompt to employers to ensure their policy is reasonable in nature and necessary for the specific job.
Dress codes are used by employers for various reasons, such as ensuring workers are dressed safely and appropriately and communicating a corporate image.
In the most recent case highlighting potential issues regarding dress code policies, a former actress, Nicola Thorp, was told on her first day working as a temp receptionist that she must change out of her flat shoes and wear 2-4 inch high heel shoes. When Ms Thorp complained and highlighted that male colleagues were not required to wear high heel shoes she was sent home without pay.
Her employer defended the dress code by stating that their policies ensure staff are dressed consistently and have appropriate style of footwear.
Although there is no specific law on dress codes at work, the Equality Act 2010 prohibits discrimination on the grounds of a protected characteristic, which include: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
It is common for men and women to be required to dress differently at work, for example male employees being required to wear a tie whilst their female colleagues are not subject to the same requirement. These differences have resulted in a number of sex discrimination cases which have established how an Employment Tribunal must approach such cases; most relevantly they will not find a dress code discriminatory just because of differences between the sexes.
The Tribunal is concerned by the overall effect of the rules and starts by asking whether members of one sex have been treated less favourably than others. Therefore requiring men to wear a tie is not discrimination provided that female employees are required to meet a comparable standard of smartness.
What should employers do?
Key points in the guidance issued by ACAS include:
- Employers must avoid unlawful discrimination in any dress code policy
- Employers may have health and safety reasons for having certain standards
- Dress codes must apply to both men and women equally, although they may have different requirements
- Reasonable adjustments must be made for disabled people when dress codes are in place.
The guidance emphasises that it is good practice for employers to consider the reasons for any dress code when drafting or updating a policy.
If you would like more advice on this or any other employment law subject, feel free to contact our employment team for information.