In this blog we have considered whether employees can be required under a dress code to wear heels in the workplace within the UK. We have also outlined the current guidance for UK employers.
You may have seen the recent media coverage surrounding the dress code requirements for women in Japan.
More specifically, scrutiny has been directed at the current requirement for many Japanese women to wear high heels in their place of work. The controversial requirement has been recently defended by Japan’s Health and Labour Minister as both “necessary and appropriate.”
In response, an aptly named movement called #kutoo, which literally translates as shoe (kutsu) and pain (kutsuu) has rapidly gained momentum following Japanese actress, Yumi Ishikawa’s comment that she needed to change her career path due to the difficulty of standing in heels for eight hours at work.
In light of this story, we have considered whether employees can be required to wear heels in the workplace within the UK. We have also outlined the current guidance for UK employers.
A great deal of media attention surrounded dress code requirements when an agency worker called Nicola Thorpe, arrived to work as a receptionist in London in December 2015 wearing flat shoes. Nicola was sent home without pay by her agency for failing to comply with the dress code which required her to wear shoes with heels of between 2 – 4 inches.
The story received widespread media coverage and Mrs Thorpe started an online petition, which gained over 150,000 signatures, to make it illegal to require women to wear high heels. In response, the government acknowledged that the Equality Act 2010 was “not yet fully effective” in addressing the issue and highlighted “considerable uncertainty” as to whether specific requirements (i.e. the requirement to wear make up) was legal or not.
Interestingly, the government rejected any recommendations that would require legislative change and placed emphasis on the existing law as sufficient to protect women who are subjected to discriminatory dress codes. Alongside this, in May 2018, the Government Equalities Office published new guidance on dress codes for employers, employees and job applicants.
Guidance for employers
The published guidance acknowledges that dress codes can be a legitimate part of an employee’s terms and conditions of service but confirms that any less favourable treatment because of sex could be direct discrimination.
The guidance is clear “that a dress code that makes significantly more demands of female employees than of their male colleagues will be unlawful [direct sex discrimination]“. It notes that, while dress policies for men and women do not have to be identical, the standards imposed should be equivalent.
What does this mean for employers?
In accordance with the published government guidance we recommend that, before introducing a dress code policy, employers:
- consider the reason behind enforcing a dress code policy;
- consult with employees, staff organisations and trade unions to try and ensure the policy is acceptable to both the employer and its staff;
- consider the health and safety implications of any requirement. If employees are required to wear particular shoes as part of a dress code (rather than for safety purposes), the employer should consider whether this may make staff more vulnerable to accidents or physical injury;
- avoid any gender specific prescriptive requirements, such as a requirement to wear high heels. The guidance warns that any requirement to wear make up, skirts, have manicured nails, hair styles or a certain type of hosiery is likely to be unlawful assuming there is no equivalent requirement for men;
- avoid introducing a code that could lead to harassment by colleagues or customers as any requirements for women to dress in a provocative manner are likely to be unlawful on those grounds; and
- avoid prohibiting religious symbols that do not interfere with an employee’s work.
The guidance also notes that it may be a reasonable adjustment to not require a disabled employee to comply with the dress code and transgender employees should be allowed to follow the organisation’s dress code in a way which they feel matches their gender identity.
Areas of uncertainty
The guidance helps to clarify certain points, namely that any requirement to wear heels, make up, skirts, or maintain perfectly pristine nails is likely to be unlawful. However, the use of “likely” demonstrates that this is not a clear cut distinction and we would recommend that all employers take legal advice before proceeding to introduce a dress code policy. If you have any doubt about this, please contact me.
The guidance has also been criticised for focusing on the rights of employees, rather than the rights of other workers. This is an area in which little case law has been brought and it remains to be seen whether a new case could help to clarify the areas of uncertainty that remain.
We regularly hold training sessions on all sorts of employment law issues. Please have a look at our Events list to see if there is a course you or a colleague would like to attend.
I regularly advise employers and employees in relation to issues surrounding discrimination in the workplace. If you have concerns regarding introducing a dress code policy or require advice on any policy you already have in place do please contact me.