When Virgin Atlantic flew into the airline scene in the 1980s, its arrival was noteworthy due to its distinctive brand image. Love it or hate it, Virgin Atlantic’s brand wizardry helped build an iconic brand of an airline people really wanted to fly with. Jetting forward some thirty or so years, with equality at the forefront of media and politics and the words “#metoo” potentially getting more air time these days than “Where’s your red lipstick?”, Virgin Atlantic has decided to relax its dress code for women. Specifically, its air stewardesses can now go makeup-free and will be issued with a pair of trousers without even having to ask for them. While, admittedly, this is no giant step towards equality, it does highlight the potential juggle businesses can face between building and maintaining a brand image and dealing with potential employment law and public relations issues.

Equality vs brand image

Legally, employers still have a wide degree of flexibility in determining dress codes for staff, subject to two key points.

First, health & safety is of prime importance. If you ask your female employees to wear six inch heels on a building site, you will likely have a health & safety issue (amongst others potentially).

Second, an employer's dress code must not be discriminatory in respect of the protected characteristics in the Equality Act 2010 for age, marriage and civil partnership, disability, gender reassignment, religion or belief, sex, sexual orientation, pregnancy or maternity.

Sex discrimination is usually the main concern in dress code cases. Treating staff equally on grounds of sex does not translate to having to require men to wear makeup if women are required to wear makeup. It simply means if you have a dress code for women that requires them to wear makeup, you need a dress code for men that requires them to be presented to the same standard. So, if, for example, you require a woman to wear heels, you might require a man to wear smartly polished shoes and not trainers.

Particular care must be taken, however, in handling dress codes for employees with a disability, who may require a reasonable adjustment to any dress code.

So, from a legal perspective, employers can still require female employees to wear makeup, a skirt and heels, if they impose a comparable dress code on male employees. But in practice, they might be vilified by the media, which potentially could be more costly than any Employment Tribunal claim.

Media vs brand image

There have been plenty of interesting developments when it comes to corporate dress codes. Arguably, the first such case which heralded a movement against sexualised dress codes for women was the much-publicised “PWC receptionist who is not in fact a PWC receptionist but is in fact an agency worker bound by a third-party dress code which somehow the agency thought PWC wanted” case concerning Ms Nicola Thorp. That case concerned a receptionist who was turned away on her first day because she deigned to wear pumps instead of heels. The company which engaged her, however, had a strict dress code requiring staff to wear two to four inch heels, regularly applied makeup and neat hair, among other things.

In practice, Ms Thorp may have found it difficult to succeed in a claim for sex discrimination, because men were also subject to dress code restrictions, albeit of a different nature. While it is not known if Ms Thorp sought or found retribution in an Employment Tribunal, arguably she achieved greater success in bringing her story to the world through social media and the media frenzy that ensued.

As if that wasn’t enough, Ms Thorp subsequently started a petition to introduce a law prohibiting employers from requiring women to wear heels at work. The petition gained over 150,000 votes and was debated in Parliament, but ultimately Parliament decided not to legislate. Potentially some were conflicted by the thought of having to see strippers in ballet pumps if they changed the law. Anyhow, a substantial amount of reputational damage was done.

Dress code or no dress code?

Ultimately, an employer has to make a call as to whether it requires a dress code or not and if so, what that dress code should consist of. Many employers do still have a dress code and indeed it can be useful to have one to ensure standards of dress in the workplace. Employers need to weigh up the business rationale behind having a dress code and ensuring the dress code is appropriate. Requiring all employees to wear a collar, for instance, is less likely to be contentious than requiring a woman to wear makeup. While, legally, employers can still ask female employees to dress like every day is Ladies Day at Ascot, as my mother used to say: “Just because you can doesn’t mean you should”.