No doubt in the wake of the recent spate of cases of alleged sexual harassment, both historic and otherwise, the Government Equalities Office has produced new guidance on dress codes and sex discrimination.
It reminds employers that dress policies for men and women do not have to be identical but standards imposed should be equivalent. It also warns that requiring any gender specific items such as high heels, make up or having manicured nails, is likely to be unlawful.
It warns against requiring both men and women to dress provocatively as, whilst that might not be direct sex discrimination, it raises the risk of harassment.
The Equality Act 2010 (“The Act”) does not set out specific examples of practices that are unlawful, or definitions of behaviour that are “sexist” “racist” or “homophobic” and so on. It sets out the legal framework including a ban on sex discrimination and harassment and it is ultimately for the courts and tribunals to decide whether a practice is unlawful depending upon the facts of each case.
With regard to transgender staff these should be allowed to follow the organisation’s dress code in a way which they feel matches their gender identity. If there is a staff uniform, they should be supplied with an option which suits them.
Examples of dress code policies
High heels at work
An employer requires female staff to wear high heels as part of a dress code but places no footwear requirements on men or merely requires them to look smart. This is likely to constitute direct discrimination on the grounds of sex because there is not an equivalent standard imposed on male staff. It may also amount to indirect discrimination against employees with a disability, where heels could exacerbate any difficulties with their mobility, or for those who are visually impaired, where walking in heels can pose an extra risk of falling.
Smart clothes for employees
A company requires their receptionists to dress smartly, to portray a positive public face in image. This would be lawful as there are no gender specific requirements for men or women.
Footwear policy in the workplace
An employer requires all employees to wear smart shoes but does not require female employees to wear high heels. This would be lawful.
Bar staff dress code
A bar expects both male and female staff to dress in a provocative or revealing fashion. This might not amount to direct discrimination since it imposes equivalent requirements on men and women but it could contribute to an environment in which employees may be vulnerable to unwanted sexual attention and harassment. If a female member of staff made a complaint that the dress code amounts to harassment and shortly afterwards, she were dismissed from her job with no valid reason given, this could be unlawful victimisation even if the employer did not say it was because of her complaint. This would be the case even if the shop assistant’s harassment complaint was not upheld.
With regard to religion, the Equality and Human Rights Commission has published a guidance on dress codes and religious symbols.
To discuss your dress code policy, or if you have experienced discrimination at work please call our employment team on 0113 320 5000.
