In May, the Government Equalities Office published so-called guidance on dress codes and sex discrimination. In terms of fatuity it is difficult to think this document has an equal in the long history of unhelpful government paper. What follows is not intended to suggest that there is no need for sensible dress codes that ensure health and safety issues are observed and avoids discrimination, but rather observes the futility of this parliamentary review.
This is what the guidance advises:
- Dress codes can be legitimate.
- Standards imposed on men and women should be equivalent and not ‘a source of harassment’.
- Gender-specific prescriptive requirements are best avoided.
- Consulting unions and employees over codes is a good thing.
No one will feel better informed or assisted by any of this. It does nothing to alter what most advisers are already telling clients.
The initial impetus for this was a petition launched by an aggrieved woman, Nicola Thorp, who objected to the dress code of her agency that stated that she should wear heels of between two and four inches. The petition sought a law making it illegal for a company to require women to wear high heels at work. It attracted just over 152,000 signatures most in the south of England with the heaviest concentration in Greater London. Government responded stating that dress codes should be ‘reasonable’ and not discriminatory’. This mild utterance so incensed the Petitions Committee of the House of Commons that they joined forces with the Women and Equalities Committee, extended the ambit of their deliberations to include all aspects of dress codes, and published recommendations in a report on 25 January 2017.
Written evidence was given by a very narrow range of contributors (eight witnesses only) and, apart from the agency under the spotlight, the only representative of employers questioned was a gentlemen from the recruitment industry. The only area where a serious effort to review existing research was on the issue of whether high heels can be injurious to health. Who needs research to reveal that truth?
Two lawyers gave evidence. One aspect of what they both said was revealingly ignored in the First Joint Report. This concerned the care that most of their client employers took when considering dress codes. One said he had advised many employers in both the public and private sector on dress codes and that employers were ‘… quite risk-averse on this’. The other said, in relating to accommodating transgender people: ‘Normally, employers are very careful to take advice, and most employers want to handle it very sensitively …’. The fact that this aspect of their evidence was not reflected at all in the report and the slanted nature of the evidence taken casts considerable doubt upon the even-handedness of these committees’ considerations.
The report made nine recommendations. Some were startling in the context of the jurisdiction of Employment Tribunals and also the wider law on indirect discrimination. One was the idea that there should be a limit on the range of what may constitute a legitimate aim of an employer. Government was willing to accept this proposal as providing good illustrations of what might be lawful but thought courts and tribunals should be free to consider particular circumstances. As imposing such a restriction on the law of indirect discrimination only for dress codes would be both odd and encourage many similar restrictions in different areas of the law, this response seems very sensible.
Another recommendation was to allow Employment Tribunals to impose injunctions in this type of case. Government rightly pointed out that granting injunctions was a jurisdiction of the High Court, not a tribunal, and that to create such a jurisdiction only for dress codes would be ‘disproportionate’.
All of the remaining suggestions made in the report were batted off by promising guidance and that eventually resulted in the inadequate and feeble document referred to at the beginning of this article.
This whole exercise was a huge waste of time and ignored the work already done in the area by Acas in 2016, which is readily available and much more thorough as it considers both the employer’s and employee’s standpoints as well as a huge range of academic and practitioner contributions on the issue. It would have been a far sounder basis for guidance than the report.
There are really vital areas of employment law that cry out for Government attention – for example, the chaotic rules relating to family issues and pregnancy, and the difficulties of the working time rules. To have spent all this time on high heels demonstrates the failure of Parliament to adopt a sensible sense of priorities and how it is easily swayed into wasting time on the cause of the moment.
This article is an abbreviated version of one first drafted for and published by ELA Briefing.