Government guidance fails to stamp down on high heel dress codes

Amid the recent reports of employers enforcing contraversial dress codes, our employment team take a closer look at the issue - and examine the new Government guidance for employers. 

Why do companies have dress codes?

Companies implement dress codes for many reasons – like portraying a particular brand, promoting health and safety, and some studies show that wearing specific ‘work attire’ can also increase productivity. They can be necessary for legitimate reasons.

So, what’s the problem them?

Dress codes have come under increased scrutiny recently, following several high profile reports and campaigns – like the one Nicola Thorp started in 2016 after she was sent home from her receptionist job at PwC for wearing flats.

The Petitions Committee and Women and Equalities Committee undertook a full review of dress codes. This inquiry uncovered further examples of demeaning and discriminatory dress codes and published a report: “High heels and workplace dress codes”. It found that young women, in particular, were impacted by dress codes and that the Equality Act 2010 was not effective in protecting them. And, as well as discriminating against gender – requiring women to wear make-up, or specific shades of nail varnish – they can be problematic for individuals with specific religious beliefs, too.

The report called for a number of changes, one of which was to increase awareness with detailed guidance and a campaign targeted at employers.

What’s the law?

The existing legislation that aims to tackle these practices isn’t clear in lay terms, isn’t particularly well enforced in the employment tribunal, and is still ignored by many employers.

So, following the report, the Government Equalities Office produced guidance for employers.

The publication explains that requiring employees to wear makeup, or have manicured nails, is ‘likely to be unlawful’ – ‘assuming there is no equivalent requirement for men’. It also states that having a code that requires employees to dress ‘provocatively’, a term which remains undefined, raises the risk of unlawful harassment by creating an ‘intimidating and offensive’ working environment for those employees – so will have particular relevance to the hospitality and retail sectors.

Will the new guidance change anything?

Given that employers don’t typically ask men to sport makeup or high heeled shoes, campaigners and lawyers alike are concerned that employers will equate the formality of heels on women to a sharp suit and polished shoes on men – defeating the point of the guidance and perpetuating dated perceptions of business wear.  Also, what may be provocative dress in one environment may be regarded as normal in another, so, again, employers are left to make risky judgement calls on whether a certain dress code will offend its employees.

To have a meaningful impact on gender equality in the workplace, this guidance needs to be clarified, and, if necessary, backed up with legislation. The Government could, now, make it explicitly clear that highly prescriptive and/or sexualised dress codes requiring female employees to wear a skirt, high heels, or makeup is almost always going to amount to unlawful sex discrimination, without needing to show it amounts to less favourable treatment than a comparable male employee, or is likely to cause offence. This would help to remove the grey area that employers currently face and give them clear parameters in which to set certain dress codes.

Hopefully, the Government will provide some clarity soon. In the meantime, if you’re wondering whether or not your dress code policy is Equality Act-compliant, get in touch with our employment law team.