Laura Farnsworth and Emma Langhorn: Dressing to impress – discriminatory appearance codes

A recent report jointly published by the Petitions Committee and the Women and Equalities Committee illustrates that wearing high heels for a prolonged period of time can cause both short and long-term damage to workers’ health and wellbeing.

As well as the more obvious physical damage to feet and ankles, wearing heels has also been found to cause back problems, reduced concentration, shallower breathing (which can in turn damage vocal chords) and a lack of balance.

Dress requirements can also have a psychological impact on women, who have commented that requirements to wear high heels can be humiliating and demeaning.  Certain dress code requirements (for instance, to wear short skirts, or unbutton blouses) can leave women feeling that their appearance is being sexualised. Such requests are very infrequently made of men.

In addition, dress codes that enforce gender stereotypes can ostracise individuals who do not conform to such rigid stereotypes and can make some workers, especially some LGBT workers, feel uncomfortable. Some individuals have even said that dress code requirements (such as wearing high heels) could be enough to deter them from applying to or progressing within an organisation.

So are they legal?

The law

The Equality Act 2010 sets out the legal position on when gender-based dress codes discriminate against women:

  • Direct discrimination: this is where a dress code treats a woman less favourably due to the fact that she is a woman in comparison to her male equivalent.
  • Indirect discrimination: this is where a dress code requirement applies equally to men and women, but disadvantages women and the employer cannot justify the requirement.

An employer can justify a charge of indirect discrimination if it can show that the dress code requirement in question is a proportionate means of achieving a legitimate aim.  An example of a legitimate aim is where a dress code is important in defining a worker’s role (e.g. a police officer’s uniform).  It is hard to image how the requirement for women to wear high heels could be a legitimate aim, or a proportionate means of achieving such an aim.

Medical evidence has also demonstrated that the damaging impact of high heels is particularly acute for older women or those with disabilities.  Therefore, employers who use gender-based dress codes may also be at risk of age and disability discrimination claims.

Awareness

Although the Equality Act has been in place for some time now, many employers are not aware of the potential discriminatory issues linked to some dress codes.

The report has called for the government to publish guidance on dress code discrimination by July 2017 to address the more controversial topics of high heels, make-up, low-fronted or unbuttoned tops, or requirements for manicures or certain haircuts.

Employers owe their employees a legal duty to ensure that they work in a safe environment and, as part of this, employers are also encouraged to consider the potential health and safety implications of certain dress code requirements, such as wearing high heels.

Penalties

One striking feature of the report is the call for stricter penalties for discriminatory dress codes.  Currently, a worker who is successful in a discrimination claim can be compensated for any financial losses caused by the discrimination (e.g. lost wages if they were dismissed) and a sum to reflect any upset or distress caused by the discrimination.  The report calls for more severe financial penalties to incentivise compliance.  It is also thought that injunctions preventing employers from requiring workers to comply with discriminatory dress codes could also be an effective tool for employees in the future.

Next steps…

These calls for further guidance and penalties mean that it is likely that this issue will continue to develop over the coming years, making now an ideal time for employers to review their dress code policies to ensure that they are either gender neutral, or justifiable.

Laura Farnsworth is a partner and Emma Langhorn is a trainee in the employment team at Lewis Silkin LLP

About Laura Farnsworth

Laura has been a member of the employment team at Lewis Silkin since qualifying as a solicitor in 2001 and has been a partner since 2009. Her day-to-day practice involves dealing with the full range of employment law issues, including performance management, ill-health absence, transfers, discrimination, redundancies, disciplinaries and grievances. Laura has a particular interest and expertise in the law on family rights, flexible working requests, sex discrimination and gender pay gap reporting, as well as how to deal with tricky disability and sickness absence issues. She has also advised several companies on their modern slavery statements and supply chain due diligence. Laura manages Lewis Silkin’s fixed fee HR and employment law support service: rockhopper.

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