Government reforms: Discrimination and dress codes

What do we already know?

We updated you in our March Newsletter Government reforms (2): Discrimination and dress codes that the Government had indicated that it would take strong action to tackle sex discrimination at work, including discriminatory dress codes, in light of a joint report by the House of Commons Petitions Committee and the Women and Equalities Committee in January 2017 named High heels and workplace dress codes, available here.

We also told you that the Government was carefully considering the Committees’ report and recommendations and would be issuing a response shortly.

What’s new?

The Government has considered the Committees’ report and issued its response, available here.

In its response the Government said that it takes this issue very seriously and will continue to work hard to ensure women are not held back in the workplace by outdated attitudes and practices. However, they rejected recommendations for legislative change on the basis that scope for redress for women subjected to discriminatory dress codes already exists in the Equality Act 2010. The response states that “we are clear that a dress code that makes significantly more demands of female employees than of their male colleagues will be unlawful [direct sex discrimination]“.

However, the Government accepted that awareness of the law among employers and employees is patchy and it should do more to raise awareness and knowledge of employee’s rights and employers’ responsibilities.  New comprehensive guidance on dress codes is expected to be published later in the year.

More generally, the Government reiterated their commitment to enhancing the role of women and removing barriers to equality, including outdated attitudes and practices, by tackling the gender pay gap, increasing the number of women on boards, increasing support for childcare costs and ensuring that employers are aware of their obligations to pregnant women.

Comment:

While comprehensive guidance on dress codes is to be welcomed, the Government appears to have sidestepped the key recommendation of the Committees’ report, which was to review this area of the law. Indeed, the Committees found that “the law is obviously not working in practice to protect employees from discriminatory practices and unsafe working conditions“.

The Government maintains that the law is clear, but poorly understood.  However, unfortunately there is a lack of recent case law on whether, and in what circumstances, a dress code constitutes sex discrimination. This uncertainty, together with the fact that few cases are brought challenging discriminatory dress codes, can be exploited by employers. It remains to be seen whether the “persuasive enforcement approach”, coupled with new detailed guidance, will work. However, it is likely that there will be many small employers who are not sufficiently motivated to change their behaviour.