Don’t get a dressing down – know the latest government dress code guidance

Dress code always is a hot topic especially with the sun finally making an appearance in the U.K. Lines get blurred however on what is suitable for the office; you may well have already seen flip flops and vest tops making their seasonal appearance.
 
Some readers may recall the controversy that an agency worker (Ms Thorp) made when she arrived to work wearing flat shoes for PwC. She was subsequently sent home without pay for failing to comply with the set dress code, which required women to wear shoes with heels of between 2 and 4 inches. As a result of her treatment, Ms Thorp instigated a petition in order to make it illegal to require women to wear high heels at work.

Due to the media attention and the petition receiving over 150,000 signatures this led to an inquiry which found that not only was this not an isolated incident, but it was just one example of discriminatory dress codes, often at the expense of women.  As a result of this and other dress code issues with disabled and transgender staff, the government has released guidance for employers to follow.

Whilst the guidance does not always give specific examples of what is and isn’t illegal under the Equality Act framework, it does give advice to avoid gender specific requirements such as a requirement to wear make-up, having manicured nails or wearing hair in certain styles. It also notes that requiring female employees to wear high heels could be unlawful.

However, the guidance is not a blanket ban on any of the above. The guidance clearly states that the above examples are ‘likely to be unlawful, assuming there is no equivalent requirement for men’. This means that certain examples of the above could allowed within a dress code, so long as the treatment is not seen as discriminatory against either sex. That being said, the guidance suggests that a dress code might specify dressing ‘smartly’ as an appropriate option. So long as a employer’s definition of ‘smart’ is reasonable and imposes equivalent standards of dress for men and women, then there should be no issues whatsoever.

Moving away from the gender discrimination aspect of the guidance, further advice is provided with regards to disabled employees, transgender employees and religious employees. It highlights considering making reasonable adjustments for a disabled employee if the dress code might impact on them more than other employees, allow transgender staff to wear clothing which matches their gender identity and to not prohibit religious symbols or clothing so long as they do not interfere with an employee’s work.  You may recall from a previous bulletin the case of Begum v Pedagogy Auras UK Ltd whereby an employer was allowed to ask a prospective employee not to wear a full length jilbab because it posed a tripping hazard. This was not discriminatory because it did not stop the prospective employee from wearing a jilbab, only a floor length one, and the health and safety risk justified the action. A link to the full analysis of this case can be found HERE. 

In conclusion, whilst this guidance goes a long way to ensuring a set of fairer standards for all with regards to dress codes at work, the question remains as to whether it has gone far enough.  The guidance still remains on the fence when stating that certain actions ‘could’ amount to discrimination which leaves a little uncertainty for employers and employees alike. Nevertheless, clear steps have been made following Ms Thorp’s petition if only to raise what a huge publicity disaster it could end up being for a business.

What does this mean for you or your business?

The guidance does not contain any penalties for employers with a discriminatory dress code.  However, the guidance would no doubt be cited and used as evidence if an employer had to defend such a case involving discrimination due to a discriminatory dress code.

What do you need to be doing now?

Be aware of the above guidance and check that your policies do not fall foul of it. If you do not have a dress code, it would be useful to have a non-contractual policy drafted in accordance with the guidelines. This will provide clear guidance to employees about what is expected of them.

The key points to consider for your dress code are that it should be:

• Equivalent for both genders - this does not mean the same literally, but it must impose a similar standard.
  
  
• Practical – make your dress code suit the work that you do.
  
  
• Non-discriminatory – ensure that it is fair for all and does not impose needless restrictions on staff members.

Also remember to consistently apply it to all members of staff.

The link to the guidance can be found HERE.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.