A recent news story involving a receptionist sent home from work for refusing to wear high heels has put workplace dress codes in the spotlight.
Nicola Thorpe was employed as a temporary receptionist through an outsourcing agency, Portico, whose dress code required women to wear a two-to-four-inch heeled shoe. When she arrived at work in flat shoes, she was told she would need to go and buy an ‘appropriate’ pair of heeled shoes or be sent home without pay. She complained that the dress code was discriminatory since her male colleagues were allowed to work in flat shoes.
Her arguments appear to have struck a chord with people across the UK: a petition asking for a change in the law to enable women to wear flat formal shoes at work has gained over 130,000 signatories. While requiring female employees to wear heeled shoes to work is undoubtedly controversial, is it actually unlawful?
Most organisations have some kind of a dress code and can generally exercise a wide discretion in determining what the code says. However, organisations do need to be aware of the risk of discrimination claims. The law prohibits discriminatory treatment on the grounds of various ‘protected characteristics’ including sex.
Discrimination could include treating employees less favourably or subjecting them to harassment because of their sex, or following a particular policy or procedure that disadvantages employees of a particular sex without justification.
Organisations often find it difficult to determine whether or not a dress code is discriminatory, given that ideas about what is appropriate for each sex can differ significantly. Discrimination law does not require employers to apply identical requirements to male and female employees. The fact that Thorpe’s male colleagues were allowed to wear flat shoes is not, therefore, conclusive evidence of discrimination. But the law does require organisations to adopt an even-handed approach to male and female employees by ensuring that the overall standard of dress and level of formality is comparable for both sexes. The Acas guidance on dress codes makes it clear that a policy specifying different requirements for male and female employees such as ‘business dress’ for women and ‘must wear a tie’ for men will not necessarily be discriminatory.
Discrimination claims present a serious threat to organisations, not only because financial liability is uncapped but also because of the significant reputational risks involved. To minimise these risks, organisations should ensure they have legitimate reasons for implementing a dress code such as corporate image or health and safety. They will also need to consider whether the restrictions are reasonable and appropriate in relation to a particular role.
In this case, Nicola Thorpe was working as a receptionist with PwC through an agency and it was this company’s appearance policy that she had breached. It’s important to note that agency workers are protected against discriminatory treatment by both the employer (in this case the agency) and the end-user company for whom they are carrying out the work (in this case PwC), so employers’ exposure to liability may be wider than they think.
Even where liability isn’t an issue, the reputational risks associated with a controversial or discriminatory dress code, and the impact this could have on commercial relationships, are likely to concern employers. Here, PwC made it clear from the outset that the dress code was not its policy. The firm also contacted the agency to ask it to revise its dress code.
This case is a reminder that ideas of what is appropriate with regard to dress and appearance evolve over time and it may no longer be acceptable to require women to wear high heels, particular given the increasing focus in the workplace on health, diversity and equality. Employers are likely to find their dress codes placed under increasing scrutiny as a result of the story and should be prepared to justify any requirements the put on staff. The fact that Portico has issued a statement saying that it will be changing its dress code policy ‘with immediate effect’ may be an indication of the changes to come in this area.
Story via – http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/05/19/high-heels-row-prompts-parliamentary-petition-for-law-change.aspx