July 25, 2016

Cracking the dress code – these shoes were made for working

Workplace dress codes have been called into sharp focus following the recent highly-publicised incident involving former-actress Nicola Thorp, sent home from her new city job on her first day for refusing to wear heels.

Nicola arrived for her first day with PwC’s outsourced reception firm, Portico, in smart dress and wearing flat shoes ready to spend a nine-hour shift on her feet.

But before she was allowed to commence her duties as a receptionist her new employers insisted she wear a pair of shoes with heels between two and four inches high.

Nicola objected, pointing out the demand was discriminatory, but says she was laughed at. And, although her employers were unable to give her any reason why flat shoes would impede her ability to carry out the role, they refused to be swayed and sent Nicola home without pay.

The employer maintained that their workplace dress code policies ensure staff are dressed consistently and have appropriate footwear in what is a corporate environment.

So do they have a leg to stand on?

Office dress codes – the facts

The Equality Act 2010 prohibits discrimination on the grounds of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation), but there is no specific reference to dress codes.

However, claims can be taken to employment tribunals if a rule or policy is seen to adversely impact somebody with a protected characteristic when compared to somebody who does not share that characteristic.

In Nicola’s case it was alleged the high heels rule was discriminatory on the grounds of her sex when compared to male employees.

The incident highlights the potential dangers to employers who enforce a dress code policy which goes beyond what is reasonably necessary for the role. It could certainly be argued that Nicola looked smart enough in flat shoes – any rule beyond that would be difficult to justify.

Requiring men and women to wear different uniforms is not in itself unlawful, and it happens regularly. Men are often required to wear ties, for example, whereas women are not. Provided women are required to achieve a similar standard of smartness in their dress, this would not generally be considered to treating men less favourably than women.

When it comes to dress codes be reasonable

As an employer, you should consider whether the standards of dress you require are necessary, reasonable and proportionate. Presenting a corporate image could be deemed necessary, while there could be health and safety reasons for insisting on hard hats or protective footwear for example.

To protect yourself against claims, you should have a reasonable, clearly communicated and consistently applied dress code that does not go beyond what is necessary.

Ask yourself what you are trying to achieve by implementing any such policy.

Is there a sound business reason for the change?
If there is then it’s a good idea to seek the views of the employees who’ll be wearing any new uniform or sticking to a dress code.

Is it comfortable? Will it help or hinder them to carry out their duties?

You are likely to be on solid legal ground so long as you require the same standards for both male and female employees (even if this is achieved through different dress) and the dress code is reasonable bearing in mind the requirements of the job.

Beware of exceptions

There are two final points to bear in mind.

Religious dress can pose problems for employers and issues should be handled sensitively. Generally speaking, employees should be entitled to express their religious faith in clothing or accessory choices such as, for example, a crucifix on a necklace. You will need sound business reasons for prohibiting any such dress.

And you are also always under a duty to consider reasonable adjustments for those employees who meet the definition of disabled under the Equality Act 2010.

If a disabled employee has difficulty complying with any aspect of a dress code, thought should be given to adjusting the requirements in that particular case.

If you need any help with your own staff policies on uniform, dress code or any other workplace issues, call our experts on 0845 184 4615 or contact the team.

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About the author

Stuart Morley

Having then been awarded a scholarship from the Bar Council, Stuart sat his Bar exams in Manchester and was called to the Bar of England and Wales in October 2002. Since then, Stuart has worked as an Employment Tribunal Advocate, handling all aspects of employment advice and litigation at hearing centres across the UK.