If you had forgotten the furore in 2015 when Nicola Thorp was sent home from work, without pay, after refusing an instruction to buy a pair of shoes with at last a two-inch heel to replace the flat shoes she had worn to work, then you may have been reminded of it this morning. A Report published today by Two Commons’ committees has called for a review of equality legislation after gathering evidence of sexist instructions issued to hundreds of female worker. These included instructions to dye their hair blonde, to wear revealing outfits and to constantly reapply make up.
Every workplace has different dress codes and expectations, so a list of unacceptable clothing items in the policy makes it clear for everyone what is expected (it can deal with other items too such as tattoos, piercings, hair styles). However, the issue is whether the requirement to wear high heels is sex discrimination because a man would not be required to wear high heels. What may surprise many is different requirements for men and women in a dress code will not amount to sex discrimination, provided it applies a conventional standard of appearance and taken as whole, rather than item by item, neither men nor women are treated less favourably in its enforcement.
The Courts and Employment Tribunals have been clear about this principle; so, a requirement for men to have hair “not below shirt-collar length” which did not apply to a woman or a requirement for men to wear a shirt and a tie but women only to dress appropriately and to a similar standard is not discrimination. If we imagine then a dress code that requires women to wear two-inch heels and men to wear only Brogues would that be sex discrimination ?
The other point that appears to have angered some is the idea of employees being “forced” to comply with the dress code. Firstly, you’ll not be surprised to learn that an Employment Lawyer is all in favour of a policy on dress code; it is important in maintaining dress standards because while it may seem obvious to an employer that, say, flip flops should not be worn in the office, a clear list of do’s and don’t’s avoid the need to send someone home to change because it didn’t occur to him or her that it was inappropriate. Secondly, employers “force” their employees to comply with all manner of terms and conditions of employment, policies and procedures. That is the very nature of the employer/employee relationship. In return, the employee receives his or her wage. Unless it is being suggested an employee should be dismissed for their first offence (and as an Employment Lawyer I’m not) then it’s reasonable for an employer to ask its employees to comply with its policies and give any employee not complying the opportunity to do so before considering taking action under the disciplinary procedure.
The Report has found that current equality laws are inadequate. My own personal view is they are, and what employers need is help to better understand their rights and obligations. A good place to start is Acas and you’ll find useful information here
Donna Reynolds is an experienced Employment Lawyer and HR Adviser advising SMEs in Fife, Edinburgh and across Scotland.