Introduction
The Equality Act 2010 (the Act) does not set out specific examples that are unlawful, or definitions of behaviours that are ‘sexist’, ‘racist’ or ‘homophobic’ etc. It sets out the legal framework, including a ban on sex discrimination and harassment, and it is decided by the courts whether a practice is unlawful depending on the facts of each case.
Update
The Government Equalities Office has recently issued guidance on dress codes and sex discrimination. The guidance has been published due to a petition when a female agency worker was sent home from work for not wearing high heels.
Their latest guidance on the issue of workplace dress codes. Entitled “Dress codes and sex discrimination”the guidance is a direct response to requests made earlier this year by both the Women and Equalities and Petitions Select Committees and provides best practice recommendations for enforcing dress code policies.
Takeaways
Amongst the main takeaways from the guidance is that whilst dress code policies remain lawful, they should not be constructed in a way that disadvantages one employee over another. Whilst dress codes for male and female employees do not have to be identical, the standards imposed should be equivalent and any less favourable treatment on account of gender runs the risk of direct discrimination. To mitigate the risk organisations are urged to avoid gender specific requirements altogether explaining that requiring female staff to wear high heels, make-up or have manicured nails is likely to be unlawful, providing there is no equivalent requirement for men.
Employers note
Employers are also encouraged to consider if there is a valid business reason for enforcing a specific dress code and if this is truly required to achieve a legitimate business aim. For example, employers in formal settings who wish for their staff to dress smart can reasonably achieve this aim without requiring female employees to wear high heeled shoes. This is precisely the point that was argued by Ms Nicola Thorp, a former secretary at PWC, who in a much-publicised case was sent home from work in 2016 after refusing to wear high heels in line with the company’s dress code.
The guidance recommends that dress codes should:
- Not be a source of harassment at the hands of colleagues of customers
- Take into account relevant Health & Safety requirements
- Allow for reasonable adjustments under the Equality Act 2010
- Allow transgender staff to dress in line with their gender identity
- Allow flexibility around religious symbols and jewellery
Whilst this guidance does little to alter the laws surrounding dress codes, organisations would be wise to consider its recommendations that many commonly enforced requirements either ‘could’ or ‘may’ be considered unlawful should a case ever be taken to an Employment Tribunal.