New guidance entitled "Dress codes and sex discrimination – what you need to know" was published by the Government Equalities Office last week. It follows the 2016 online petition started by a woman who was sent home from work when she refused to wear high heels.
The petition led to a Parliamentary Enquiry in 2017 which has led to the new guidance.
The guidance acts as a reminder that dress codes should be regularly reviewed to ensure they will not give rise to discrimination claims under the Equality Act 2010 (the Act).
The Act prohibits discrimination on the grounds of protected characteristics including age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
The guidance confirms that dress codes are not prohibited and, indeed, may be necessary in various sectors. However, it is important to ensure that any dress code is not unlawful.
The guidance provides that employers should:
- Ensure that similar or equivalent rules are laid down for both male and female employees;
- Ensure that requirements are applied to the same standard where the requirements for men and women differ;
- Avoid policies which could amount to less favourable treatment because of a protected characteristic;
- Avoid gender specific requirements (such as the requirement to wear high heels or make-up);
- Consider consulting with employees or trade unions before implementing a new policy or making changes to any existing policy;
- Have regard to the health and safety implications of the dress code;
- Allow transgender employees to follow the dress code in a way which they feel matches their gender identity;
- Be aware of the risk of harassment and victimisation claims which may arise as a result of dress codes.
The guidance is an important reminder that it is not solely sex discrimination claims which may arise as a result of dress codes. Employers should be aware of the risk of religious discrimination claims if a dress code prohibits the wearing of religious symbols where they do not interfere with an employee's work.
Employers should also consider the potential for disability discrimination claims. Where an individual is disabled under the Act, an employer should consider whether a dress code places that person at a substantial disadvantage compared to non-disabled people. If it does, the employer has a duty to make reasonable adjustments, for example by revising the dress code for that person.
There is not only a legal risk but also a reputational risk relating to dress codes. Discriminatory dress codes attract media attention, including the Portico high heel policy which triggered the petition for better guidance in this area as well as the British Airways policy which prevented the visible wearing of a cross on a necklace.
Employers introducing a new dress code, and those reviewing existing ones, should carefully consider the contents as well as the reasons for imposing any particular requirements. Particular caution should be exercised where different requirements are imposed on different groups of staff – in such cases there needs to be a non-discriminatory reason for doing so.