INSIDER JUNE 2018

WORKPLACE DRESS CODE Last year a Parliamentary committee recommended a change in the law regarding dress codes in the workplace, following a spate of reports that revealed archaic practices including some organisations requiring women to wear high heels and make up. The law has not changed but last month the Government Equalities Office has issued guidance for employers on the issue warning of the risk of sex discrimination and providing examples of what might constitute discriminatory codes. Emma O’Leary is an employment law consultant for the ELAS Group. She says: “In theory the law was there all along – the Equality Act 2017 prohibits discrimination and we have applied that to dress codes. The guidance published today clarifies this and reinforces the law but does suggest that gender specific requirements, such as high heels and make up, are best avoided. “Dress codes must be reasonable, proportionate and applied equally to men and women doing a similar role. Such policies should also be balanced with other considerations such as health and safety, not just in the workplace but also for the person wearing the item of clothing.  You wouldn’t expect someone to wear a tie around fast moving dangerous machines.

Equally, forcing someone with a disability to wear high heels might exasperate conditions surrounding their disability (in addition to being potentially discriminatory). The new guidance reminds employers that reasonable adjustments are required for disabled employees, and that might include not applying certain requirements of the dress code. “The guidance also sets out that employers should be considerate of transgender employees who must be permitted to follow the dress code according to the gender with which they identity. "Clarity is given when it comes to footwear, in that dress codes can require employees to wear smart shoes, and this would be lawful, but requiring high heels specifically with no reciprocal footwear requirements for men is likely to constitute direct discrimination. “Interestingly, but certainly timely, is the example of an employer who requires male and female staff to dress provocatively. Whilst this is unlikely to be discriminatory as it’s applied equally to men and women, it could lead to a workplace that is more likely to expose the employees to risk of sexual harassment (both male and female). This is important and a risk that no doubt many business would overlook or dismiss. Employers have a duty of care to provide a safe working environment for their employees and demonstrate that they have taken all reasonable steps to prevent discrimination or harassment from occurring. It would be very difficult for an employer to argue they have discharged that duty if they require their staff to wear clothing that is actively intended to tantalize customers. “In my view this issue will continue to attract attention and demand for change, and hold employers accountable.”

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