Parliamentary Report into workplace dress codes

Posted by Tim Forer on
The House of Commons Petition Committee and the Women and Equalities Committee have published a joint report which was tasked with examining issues relating to workplace dress codes, following the case of Nicola Thorp, who was sent home from her job as a temp receptionist at PwC for wearing flat shoes.

The Committees began investigating the issue when a petition calling for it to be illegal for employers to require female staff to wear high heels at work was signed by 150,000 people. Despite the Government's view that such a requirement was already unlawful, the report recounted numerous similar cases where women reported feeling under pressure to wear make-up or revealing outfits at work.

So what are employers' legal obligations and does the law need changing?

Health and safety

Interestingly the report goes into considerable detail on the health risks involved in women wearing high heels over a prolonged period of time. Whilst many employers will be aware generally of their health and safety duties towards employees, it is unlikely that they will have considered health and safety when it comes to footwear as part of a smart dress code.

Risks from wearing high heels include reduced balance, reduced ankle inflexion and weaker muscle power in the calf. All of these can lead not only to pain and an increased risk of accidents and injuries leading to time off work, but also to long term issues such as an increased risk of arthritis and foot deformities and potentially even lower limb disorders. Women over 40 are particularly affected since balance quickly deteriorates from that age.

The report also noted that this was likely to impair the woman's ability to do her job since she might be in pain, required to carry out tasks incompatible with wearing high heels, and have her breathing and voice projection impaired.

These risks points to the clear need for employers to conduct a risk assessment in those cases where they believe that high heels are a necessary part of their dress code. Whilst it is hoped that such employers will be in the minority, the report suggests that such policies are far more widespread than previously thought.

There is also the question of psychological well-being. Women who were forced to wear high heels, or perhaps more likely, asked to wear/re-apply makeup or wear more sexualised clothing, described it as degrading, humiliating and demeaning.

Discrimination

Under the Equality Act 2010, treating a woman less favourably than a man in the same circumstances can amount to direct sex discrimination which cannot be justified. Bearing in mind the health and safety considerations outlined above, requiring women to wear high heels could well amount to direct discrimination.

If it is part of a general dress code which applies equally to men and women (for example, which requires women to wear makeup and men to have short hair and be clean shaven), then it could be indirect sex discrimination if it can be shown to put women at a disadvantage, which would then need to be objectively justified. A requirement for women to wear high heels, or a requirement to wear short skirts and low-cut tops is likely to be indirect discrimination and may well be unjustifiable.

However, if the general code applies to both men and women, the report notes that it may often be hard for women to show that they suffered 'less favourable treatment' or that it puts them at a disadvantage, especially if the requirement can be regarded as part of conventional dress for their gender. The report noted this issue particularly in relation to wearing makeup.

In cases where it leads to unwanted attention and even harassment from clients or customers, a disadvantage may be easier to establish.

Recommendations

This Parliamentary report is valuable in highlighting the troubling experiences that some women report while working for employers of all sizes. Although it focuses on one particular case involving high heels, it shows that this is by no means an isolated incident.

Employers must take care to ensure that their dress codes are reasonable for the work in hand and do not vary according to gender in a way that is discriminatory.

The report recommends that the Government launches an awareness campaign both in relation to staff and employers to ensure they understand the relevant discrimination and health and safety laws – particularly directed at certain sectors such as the travel industry, hospitality, retail and temporary work agencies. It also recommends that clearer guidance be produced on this topic by ACAS and the Health and Safety Executive.

Whilst the report also recommends increasing financial penalties for breach of the law and allowing Employment Tribunals (ETs) to impose injunctions in this area, what comes across most clearly is the need to increase awareness amongst employers rather than change the law to make it more effective. The Equality Act 2010 is already a wide ranging piece of legislation, but like any law, it must be applied and enforced properly. The report also notes the well-documented decline in the number of ET claims and the detrimental impact of ET fees, which is a barrier to women enforcing their legal rights in this area,

Cases and reports like this help in ensuring that employers know their responsibilities and employees know their rights. The more the law is applied correctly and enforced, the more effective it becomes.

About the Author

Tim is highly experienced in employment law and specialises in advocacy. He also provides practical, commercial advice to organisations.

Tim Forer
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