I am sure all companies have that certain employee who does not conform to what a company would class as appropriate work attire, but can you ask them to change their look or to wear certain items of clothing?
The Law Regarding Appearance at Work
Back in May 2016, a newspaper printed that a receptionist was sent home from work without pay for refusing to wear high heels at work. Following this, a report came to light where female employees had been told that “they should dye their hair blonde, wear revealing outfits and regularly reapply make-up”.
Parliament was asked to review the Equality Act 2010 (EqA 2010) as a result of reports of hundreds of women reporting dress code discrimination. This resulted in a parliamentary inquiry in early 2017, following an online petition which received over 150,000 signatures demanding that employers be prevented from forcing women to wear high heels.
The inquiry was carried out jointly by the Petitions Committee and the Women and Equalities Committee and resulted in a report, ‘High Heels and Workplace Dress Codes’. The report noted that many of those affected are young women in insecure employment, who may already feel vulnerable in the workplace, and concluded that the EqA 2010 is "not yet fully effective" in addressing the issue.
It found that there is "considerable uncertainty" about whether specific requirements (such as the requirement to wear makeup) are legal or not. It recommended, among other things, that the government should consider legislating to amend the "less favourable treatment" test.
In response to this, the government committed to producing better guidance by summer 2017. However, this was not produced until May 2018 when the Government Equalities Office published ‘Dress codes and sex discrimination: what you need to know’. The guide is very short and only addresses the legal obligations of employers and the rights of employees, failing to deal with the rights of the wider category of employee "in employment" for the purposes of the EqA 2010.
The guide advises against gender specific prescriptive requirements and advises that any requirement to wear high heels, make-up, skirts, have manicured nails, certain hairstyles or specific types of hosiery is likely to be unlawful, assuming there is no equivalent requirement for men.
So, What Does This Mean for You?
Companies are free to implement a dress code which they feel is appropriate for their business, provided that the dress code is reasonable and both male and female employees have equivalent dress code requirements.
This does raise the question of what is equivalent for men and women. On the whole, women usually wear different shoes and different types of clothing, whereas men generally do not wear make-up. So, having a policy which requires women (and not men) to wear make-up would be deemed to be direct discrimination.
Then there is an indirect discrimination element to consider. If a business stipulates smart attire is a requirement and includes women wearing high heels, then this puts women at a disadvantage due to health issues associated with wearing high heels.
Wearing heels for a prolonged period of time can cause damage to health and wellbeing and research has shown that women over the age or 40 are affected more. So, insisting that women wear high heels, could amount to a claim for age discrimination and disability discrimination, if there is a reason why the employee cannot wear the garment for health reasons.
Whilst dress codes and uniforms are allowed, a company needs to think carefully about what it is trying to achive in specifying a dress code. The questions then need to be scrutinised to ensure that there are no legal obligations, which they are breaching by implementing a dress code.
Consider whether all aspects of a dress code are justifiable, such as on the grounds of health and safety, to project the right professional and public image. Furthermore, consideration has to be given to the employees themselves and if its implementation has the ability to treat an employee or a group less favourably.
Have More Questions About the Law on Work Uniforms or Dress Codes?
If you have a specific query regarding the appearance of your current or prospective employees, please get in touch with our friendly and knowledgeable employment law team who will be able to provide case-specific advice.
