Q- A client has told me a female employee has failed to wear high heeled shoes or makeup to work several times this week in line with their dress code policy. What should they do about this?
A- Many employers will see dress codes as an integral part of their business given that they are often an important way of portraying a desired company image. However, in light of recent events they should carefully consider where certain dress code requirements may be tantamount to discrimination and look to change their policies accordingly.
Whilst convention dictates employees who fail to follow workplace policies are guilty of misconduct, given the example above your client should avoid the temptation to discipline the individual as there is a significant risk these requirements are discriminatory under the Equality Act 2010. Instead, your client should review the recent guidelines released by the Government Equalities Office entitled “Dress codes and sex discrimination – what you need to know”.
This guidance explains that although dress codes do not need to be identical the standards imposed need to be equivalent, meaning there must be similar equivalent rules laid down for both male and female employees. Your client would, therefore, need to consider whether there is a requirement on men equivalent to the requirement on women to wear makeup and specific shoes.
The guidance also dictates that dress codes should not be a cause of any less favourable treatment for a group of individuals as this could be considered direct discrimination. Your client’s requirement for women to wear high heels places female staff at a significant disadvantage on account of the discomfort it can cause. With this in mind it is best practice for clients to avoid gender-specific requirements altogether, to protect themselves from claims of discrimination, as any requests for women to wear high heels, makeup or have manicured nails is likely to be unlawful.
Employers should consider if there is a valid business reason for enforcing a specific dress code and assess if these are truly required to achieve a legitimate business aim. If for example your client’s dress code is designed with the aim of presenting a smart business image, this can reasonably be achieved without requiring women to wear high heels or makeup.Given the recent government advice, your client should conduct a thorough review of existing dress code policies to ensure these requirements are not discriminatory.