21 June 2018

Dress Codes and Sex Discrimination

The Government Equalities Office has recently issued non-statutory guidance on workplace dress codes, setting out general principles and giving examples of acceptable and unacceptable requirements. This guidance comes out of an inquiry prompted largely by a highly publicised case in 2015 where a receptionist was sent home without pay for failing to comply with the employer’s dress code requiring women to wear high heels.

While it is clear that it is legitimate to have a dress code which puts reasonable requirements on employees in respect of standards of dress, it is important that dress codes do not discriminate.

Dress codes may be discriminatory on the basis that they put one sex at a disadvantage or that they amount to harassment. For example, a requirement to wear high heels is deemed to be damaging to a female worker’s health and wellbeing, and therefore imposing a requirement to wear high heels may treat women less favourably than men. This is likely to amount to discrimination. Similarly, it may be discriminatory to impose gender specific requirements, such as the requirement for women to wear make-up or have manicured nails.

It is clear from the case law and the new guidance, that dress codes for men and women, including uniform provided by the employer, need not be identical, provided they both require the same standard. For example, it may be lawful to require men to wear a tie, provided women are also expected to wear equivalent smart office attire. The requirement to wear a tie is distinguishable from the requirement to wear high heels on the basis that there is no male equivalent of the latter.

Employers must not discriminate against transgender staff, and therefore must allow them to comply with the dress code in respect of the gender with which they identify. It is, of course, also important to take account of an employee’s wish to wear a religious symbol or clothing which does not impact on their work.

The short guidance produced by the Government Equalities Office can be found here.

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Emilie Darwin, Partner
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