Government reforms (2): Discrimination and dress codes

What do we already know?

The House of Commons Petitions Committee and the Women and Equalities Committee published a joint report in January 2017 named High heels and workplace dress codes, available here.  This report is in the wake of 1) the news story of Nicola Thorp who was sent home from work for not wearing high heels and 2) an e-petition signed by more than 150,000 people calling for it to be illegal for employers to require female staff to wear high heels at work. The Government’s position is that such a practice is already unlawful.

The report concludes that being required to wear high heels is damaging to female workers’ health and wellbeing, and that certain other dress code requirements make some female workers feel uncomfortable and sexualised by their employer. The report makes recommendations in three main areas: that the Government should review this area of the law; that more effective remedies should be available against employers who breach the law, including injunctions against potentially discriminatory dress codes; and that detailed guidance and awareness campaigns targeted at employers and workers should be developed. In particular, the existing ACAS guidance on dress codes was criticised in evidence and the report recommends that the Government Equalities Offices works with ACAS and the Health and Safety Executive to publish updated guidance by July 2017.

What’s new?

The House of Commons has discussed the e-petition (referred to above) relating to dress codes and high heels in the workplace.  The Parliamentary Under Secretary of State for Women and Equalities, has promised that the Government intends to take strong action to tackle sex discrimination at work, including discriminatory dress codes.

While the Government believes that the current discrimination law is adequate, it recognises that some employers are unaware of the law, or even choose to flout it.

Ms Dinenage advised that the Government is taking, or has already taken, the following action:

• it is developing guidance for employers, working closely with ACAS, the EHRC and the Health and Safety Executive, in response to the recommendations in the Committees’ report;
• the EHRC has already taken action to raise awareness of discriminatory dress code practices on social media and is looking more generally at how to sharpen and improve its enforcement work under the Equality Act 2010;
• it expects the sectors highlighted in the Committees’ report: hotels and tourism, travel and airlines, temporary agencies, corporate services, retail and hospitality, to review their dress codes, if they have not already done so. Ms Dineage has recently written to all the trade bodies that represent those sectors to draw their attention to the report and to ask them to impress on their members the importance of treating their employees, both male and female, fairly and decently when setting dress codes; and
• it is looking at how it can improve employees’ awareness and understanding of the legal protections available to them and how better to enforce them.

In order to assist the Government in spotting and responding to discriminatory dress code practices, the Equality Advisory Support Service has agreed to refer any reports of dress code issues to the EHRC to consider further action. This will ensure that the situation is investigated, that whistleblowers are supported and that the Government can assess whether further action is required on its part, or by other bodies.

In the meantime, the Government is currently carefully considering the Committee’s report and recommendations and will be issuing a response later this month.

Comment:

The high profile news story of Nicola Thorp and the subsequent report are a timely reminder that dress codes can be a minefield for employers, for many different reasons, including the nature of the work being carried out and cultural and religious issues in the workplace.

The general guidance is to avoid being too specific.  It is key that dress codes must apply to both men and women equally, although they may have different requirements.  Case law establishes that dress codes will not normally be discriminatory if an even handed approach is taken between men and women and dress requirements are based on conventional standards of, for example, ‘smartness’.

Overall, these are the general tips for organisations on dress codes:

• Be clear at the outset on what you are looking to achieve and why;
• Avoid being prescriptive about what should be worn if the aim is just to ensure that staff are smart or projecting a professional image and consider current conventions;
• Set out what you do regard as unacceptable e.g. beachwear (unless you employ lifeguards!);
• Make it clear how the code will take into account cultural and religious requirements; and
• Set out the implications of a failure to comply with the code.