In the wake of the high heels to work campaign and Presidents’ Club scandal, the Government Equalities Office has published new guidance on workplace dress codes. The guidance recognises that a workplace dress code can be a legitimate part of an employer’s terms and conditions of employment, but highlights some of the legal risks which can arise from implementing a workplace dress code.

Can a dress code differentiate between men and women?

The guidance recognises that a workplace dress code does not need to have identical standards for men and women, provided similar or equivalent rules are laid down for both male and female employees (e.g. that they need to ‘dress smartly’).

The guidance warns employers to avoid:

  • gender specific clothing requirements (e.g. women should wear high heels or skirts to work)
  • gender specific grooming requirements (e.g. that women should wear make-up, have manicured nails or a specific hairstyle), and
  • requests to dress provocatively (e.g. to wear a little black dress, a short skirt or a low cut top) because this will lead to an increased risk of harassment by colleagues or customers.

It is perhaps worth pausing at this point to note that such requirements may not only amount to sex discrimination, but many of them may also amount to religious discrimination (e.g. a Muslim or Jewish woman may not feel able to wear a short skirt, low cut top or make-up because she wishes to dress modestly in keeping with her faith).

Transgender employees

The guidance recommends that transgender employees should be allowed to follow the organisation’s dress code in a way which they feel matches their gender identity. If there is a staff uniform, they should be allowed to choose which option to wear.

Religious symbols

The guidance recommends that employers should be flexible and not set dress codes which prohibit religious symbols that do not interfere with an employee’s work. In this respect, the guidance perhaps goes further than the most recent EU case law on religious symbols (see our report for example), so employers wishing to ban religious symbols should take legal advice specific to their circumstances.

Reasonable adjustments for disability

The guidance reminds employers that they may need to make adjustments to a dress code if it puts a disabled person at a substantial disadvantage (e.g. if their disability prevents them from wearing specific shoes, or if a uniform does not allow them to cover-up any medical equipment worn on the body).