Dress code discrimination: the legal situation

When Nicola Thorp was sent home by her temp agency after refusing to wear high heels to carry out her job as a receptionist in a City firm, it hit the headlines.

Thorp set up an online petition calling for it to be illegal for a company to require its female staff to wear high heels at work that was signed by more than 150,000 people. This prompted the Government’s Petitions Committee and Women and Equalities Committee to set up an inquiry.

Office clothing

The committees heard evidence that a large number of women, particularly in the hospitality, tourism and luxury retail sectors, are being asked to comply with dress codes which the Committees regarded as outdated and sexist. The committees also felt that although the Equality Act 2010 does contain provisions that would make such dress codes unlawful, the way that the law is written means that this isn’t necessarily very clear to workers or to their employers.

Their report therefore makes three key recommendations to Government. The first is a review of the law, as it was found the relationship “…between the provisions of the Equality Act 2010 and workplace dress codes is not widely understood.

Realistically however, Government is unlikely to want to change laws that are already in place to protect against discrimination in the workplace. To legislate specifically on the issue of high heels would be very unlikely, and once you move beyond that into dress code more generally the picture gets very complex as dress codes can impact on other issues such as religious belief, age and disability.

The second recommendation was for employment tribunals to be given powers to award financial penalties against employers who have discriminatory dress codes, with the penalty being increased in line with the number of people adversely affected by the unlawful policy, as current sanctions, the committees found, are not sufficient to deter employers from breaking the law.

This is an interesting idea and one that would be easier to implement than re-writing discrimination law. However, as it could be seen as imposing an increased regulatory burden on employers, this may not be politically acceptable to the current Government who are committed to decreasing regulation.

Finally, the third proposal, which the Government has already said it will follow up on, is for more to be done to promote understanding of the law on dress codes and discrimination in the workplace. The committees recommended that the Government Equalities Office should work with ACAS (the Advisory, Conciliation and Arbitration Service) and the Health and Safety Executive, to ensure that detailed guidance for employers on dress codes is published.

That seems an eminently sensible suggestion, as both workers and employers appear to be seeking greater clarity on this potentially confusing area.

Linda Jones is head of employment at Pinsent Masons.