Dress codes and discrimination: UK government publishes new guidance

The UK government’s Equalities Office has recently published new guidance for employers on gender-based discrimination in the context of dress codes.

The guidance, which is entitled “Dress codes and sex discrimination – what you need to know”, is aimed both at employers that set dress codes and employees and job applicants who may have to abide by them. It was produced following a recommendation from the Parliamentary Women and Equalities Select Committee and the Petitions Committee.

While the focus is mainly on gender-based discrimination relating to dress codes, the guidance also touches on health and safety as well as disability and religious discrimination.

The issue of dress codes and discrimination became a hot topic a couple of years ago when a temporary receptionist at management consultancy PwC was instructed to go home without pay after wearing flat shoes and refusing to wear two to four inch heels to work. She subsequently launched a petition seeking to tighten legislation around gender-based uniforms and presented evidence before the Petitions and Women and Equalities Committees. The new guidance from the UK Government is the result of a recommendation from both of those committees.

But the dress code issue refuses to go away. It hit the headlines again earlier this year with the scandal that followed the President’s Club charity gala event, where waitresses were allegedly required to wear revealing clothing. Outside the workplace scenario, concerns have also been raised in relation to gender-specific school uniform requirements. 

However, the new guidance does not have the force of law behind it and creates no new legal obligations for employers. What it does do is set out some key concepts in clear language. It also contains a useful list of resources for further information.

What does the guidance say about sex discrimination?

The guidance identifies a number of potentially discriminatory requirements relating to appearance, for example, obliging women to wear high heels, make-up, revealing clothing, certain hairstyles or banning them from wearing trousers. It also sets out a number of responsibilities for employers when setting a workplace dress code, including that such codes:

• Can be a legitimate part of an employer’s terms and conditions of service but must not discriminate;
• Do not have to be identical for men and women, but the standards imposed should be equivalent;
• Must not lead to harassment by colleagues or customers;
• Avoid gender-specific prescriptive requirements. For instance, requiring all employees to ‘dress smartly’ would be lawful, provided the definition of ‘smart’ is reasonable. The guidance provides the example of “a two-piece suit in a similar colour for both men and women, with low-heeled shoes for both sexes”;

It is also important for employers to consider the reasoning behind their dress code as part of good practice.

The guidance also suggests that:

• Requiring men to wear a shirt and tie is not unlawful if women are also expected to wear smart office attire;
• It is likely to be unlawful for employers to require women to wear high heels due to the discomfort or health issues that may result and because there is no male equivalent;
• A requirement for women to wear high heels may amount to disability discrimination as they could exacerbate mobility issues or pose a risk of falling for individuals who are visually impaired;
• Requiring staff, both male and female, to dress in a provocative or revealing fashion could contribute to an environment in which employees may be vulnerable to unwanted sexual attention and harassment.

Further considerations

The focus of the guidance is very much on sex discrimination. But it also touches upon the following important issues relating to employer dress codes:

• Health and safety: When setting a dress code, employers should take health and safety implications into account. An example would be requiring individuals to wear particular shoes that may cause foot damage or pose a tripping or slipping hazard.
• Reasonable adjustments for disabled employees: Employers have a statutory duty to make reasonable adjustments for disabled employees. This could include adjustments to dress codes, where the impact of such requirements are more onerous for disabled employees.
• Transgender staff: Transgender employees should be allowed to follow the organisation’s dress code in a way they feel matches their gender identity. If there is a staff uniform, it should be supplied with an option that suits them.  
• Dress codes and religious symbols: Employers should be flexible and not set dress codes that prohibit religious symbols if they do not interfere with an employee’s work.

Employee rights

The guidance summarises employee rights in relation to discriminatory dress codes and outlines how these rights could be enforced. It includes a frequently asked questions section, where one of them asks: “Can I be fired just for making a complaint about a sexist dress code?” The answer given is “No.”

But this response is not strictly accurate. An employee can be fired in this situation because it is impossible to prevent an unscrupulous and law-contravening employers from bringing their employment to an end.

However, the employee would have recourse to a legal remedy should they choose to take action. While one possible remedy would be reinstatement or re-engagement, the employee would ultimately still have been fired in the first place.  

The guidance summed up

Although the guidance is in plain English, it is brief and therefore does not address some of the more complicated legal issues in this nuanced area of law. In reality, dress codes can be a very complicated area of legislation – the case of an British Airways worker who experienced difficulties at work for wearing a crucifix went all the way to the European Court of Human Rights, for instance. 

The public debate following high-profile dress code stories in the news will undoubtedly have both raised awareness and caused a degree of confusion among employers and employees alike. But because it would be difficult to legislate for all possibilities, the guidance is a helpful, accessible starting point for those wishing to impose dress codes on their employees.

Anne-Marie Balfour is a solicitor and legal director in the employment, pensions and immigration team at Charles Russell Speechlys LLP. She advises employers and senior executives on all aspects of employment law. Anne-Marie has particular expertise in employment law with an immigration angle and her articles are frequently published in the national and trade press. 

The UK government’s Equalities Office has recently published new guidance for employers on gender-based discrimination in the context of dress codes.

The guidance, which is entitled “Dress codes and sex discrimination – what you need to know”, is aimed both at employers that set dress codes and employees and job applicants who may have to abide by them. It was produced following a recommendation from the Parliamentary Women and Equalities Select Committee and the Petitions Committee.

While the focus is mainly on gender-based discrimination relating to dress codes, the guidance also touches on health and safety as well as disability and religious discrimination.

The issue of dress codes and discrimination became a hot topic a couple of years ago when a temporary receptionist at management consultancy PwC was instructed to go home without pay after wearing flat shoes and refusing to wear two to four inch heels to work. She subsequently launched a petition seeking to tighten legislation around gender-based uniforms and presented evidence before the Petitions and Women and Equalities Committees. The new guidance from the UK Government is the result of a recommendation from both of those committees.

But the dress code issue refuses to go away. It hit the headlines again earlier this year with the scandal that followed the President’s Club charity gala event, where waitresses were allegedly required to wear revealing clothing. Outside the workplace scenario, concerns have also been raised in relation to gender-specific school uniform requirements. 

However, the new guidance does not have the force of law behind it and creates no new legal obligations for employers. What it does do is set out some key concepts in clear language. It also contains a useful list of resources for further information.

What does the guidance say about sex discrimination?

The guidance identifies a number of potentially discriminatory requirements relating to appearance, for example, obliging women to wear high heels, make-up, revealing clothing, certain hairstyles or banning them from wearing trousers. It also sets out a number of responsibilities for employers when setting a workplace dress code, including that such codes:

• Can be a legitimate part of an employer’s terms and conditions of service but must not discriminate;
• Do not have to be identical for men and women, but the standards imposed should be equivalent;
• Must not lead to harassment by colleagues or customers;
• Avoid gender-specific prescriptive requirements. For instance, requiring all employees to ‘dress smartly’ would be lawful, provided the definition of ‘smart’ is reasonable. The guidance provides the example of “a two-piece suit in a similar colour for both men and women, with low-heeled shoes for both sexes”;

It is also important for employers to consider the reasoning behind their dress code as part of good practice.

The guidance also suggests that:

• Requiring men to wear a shirt and tie is not unlawful if women are also expected to wear smart office attire;
• It is likely to be unlawful for employers to require women to wear high heels due to the discomfort or health issues that may result and because there is no male equivalent;
• A requirement for women to wear high heels may amount to disability discrimination as they could exacerbate mobility issues or pose a risk of falling for individuals who are visually impaired;
• Requiring staff, both male and female, to dress in a provocative or revealing fashion could contribute to an environment in which employees may be vulnerable to unwanted sexual attention and harassment.

Further considerations

The focus of the guidance is very much on sex discrimination. But it also touches upon the following important issues relating to employer dress codes:

• Health and safety: When setting a dress code, employers should take health and safety implications into account. An example would be requiring individuals to wear particular shoes that may cause foot damage or pose a tripping or slipping hazard.
• Reasonable adjustments for disabled employees: Employers have a statutory duty to make reasonable adjustments for disabled employees. This could include adjustments to dress codes, where the impact of such requirements are more onerous for disabled employees.
• Transgender staff: Transgender employees should be allowed to follow the organisation’s dress code in a way they feel matches their gender identity. If there is a staff uniform, it should be supplied with an option that suits them.  
• Dress codes and religious symbols: Employers should be flexible and not set dress codes that prohibit religious symbols if they do not interfere with an employee’s work.

Employee rights

The guidance summarises employee rights in relation to discriminatory dress codes and outlines how these rights could be enforced. It includes a frequently asked questions section, where one of them asks: “Can I be fired just for making a complaint about a sexist dress code?” The answer given is “No.”

But this response is not strictly accurate. An employee can be fired in this situation because it is impossible to prevent an unscrupulous and law-contravening employers from bringing their employment to an end.

However, the employee would have recourse to a legal remedy should they choose to take action. While one possible remedy would be reinstatement or re-engagement, the employee would ultimately still have been fired in the first place.  

The guidance summed up

Although the guidance is in plain English, it is brief and therefore does not address some of the more complicated legal issues in this nuanced area of law. In reality, dress codes can be a very complicated area of legislation – the case of an British Airways worker who experienced difficulties at work for wearing a crucifix went all the way to the European Court of Human Rights, for instance. 

The public debate following high-profile dress code stories in the news will undoubtedly have both raised awareness and caused a degree of confusion among employers and employees alike. But because it would be difficult to legislate for all possibilities, the guidance is a helpful, accessible starting point for those wishing to impose dress codes on their employees.

Anne-Marie Balfour is a solicitor and legal director in the employment, pensions and immigration team at Charles Russell Speechlys LLP. She advises employers and senior executives on all aspects of employment law. Anne-Marie has particular expertise in employment law with an immigration angle and her articles are frequently published in the national and trade press.