Dress codes are a hot topic in the press at the moment following one woman’s petition calling for employers to be prevented from being able to require female employees to wear high heels. Should employers be concerned about imposing a dress code in the workplace?

The current debate

Nicola Thorp was sent home by her employer without pay following her refusal to follow the company rule to wear a 2-4 inch high heel at all times. Her subsequent petition received over 152,000 signatures, and resulted in the Houses of Commons Petitions Committee deciding to investigate the issues. Their report was published at the end of January 2017 and revealed ongoing discriminatory practices in relation to dress codes. It called for the Government to take urgent action to improve the effectiveness of the Equality Act 2010 and to review this area of the law. They also recommended more effective remedies to provide a deterrent for employers who breach this area of the law, such as increased financial penalties, along with the introduction of guidance and awareness campaigns to improve the understanding of workers’ rights.The matter will be debated in Parliament on Monday 6 March 2017.

The law

Employers are entitled to set standards of dress to project their desired company image. Certainly in the travel industry, there are a number of customer facing roles in which the wearing of a uniform or adherence to a dress code is considered standard. It would be almost impossible to imagine cabin crew on an airline not wearing a uniform, and many travel agents have uniforms or dress codes to project a professional customer facing image and as an extension of their organisation’s branding.

The Equality Act 2010 makes it unlawful to discriminate against individuals with various defined protected characteristics such as gender, religion or belief, disability or gender reassignment.

When looking at dress codes, employers need to be careful not to fall foul of discrimination laws.

As part of the recent report into dress codes, the Government’s view was that the requirement for female employees to wear a high heel is directly discriminatory.

If an employer’s dress code inadvertently disadvantages employees sharing a protected characteristic then they may indirectly discriminate against those employees. An employer can defend a claim of indirect discrimination if it can show that the dress code is a proportionate way of achieving a legitimate business aim, but courts will look closely at whether the dress code is the best or most non-discriminatory way of achieving a company’s business aim. Organisations need to be clear about the need and reasons for applying their dress code in the way that they do.

Following on from case law, the Petitions Committee looking into dress codes suggested legitimate aims for employers might be:

The Courts will look at dress codes as a whole when determining whether or not they are discriminatory. It is accepted that men and women are different and that they may be subject to different requirements. Provided the employer applies the same equivalent standards to men and women then employers should not fall foul.

Is this just a gender issue?

No. Employers should always give special considerations to any dress code requests from employees owing to religion or belief, disability or gender reassignment and consider whether adapting the policy would be reasonable.

What does this mean for your dress codes?

What is clear from the Nicola Thorp debate is that this presents not just a legal risk for business, but a reputational risk.

The current debate does not mean the end of the dress code, but there is a clear direction of travel from recent cases towards removing any gender imbalance in the workforce. It is important that management are aware of the issues that could arise when seeking to enforce a dress code and that they are dealt with appropriately.

From a PR perspective, the outrage from the public and the press has focused on requirements that are seen as sexually objectifying women. In order to minimise the risks, employers should focus on standards that promote a smart and professional appearance and apply them even handedly to both genders.

This article was included in the March issue of Travel Trade Gazette (TTG).