High heels jumped straight off the fashion pages and onto the front pages last week when a Receptionist launched an online petition after refusing to comply with her employer’s female grooming policy. Here Lloyd Clarke looks at the issue of dress codes in the workplace.
High heels are a staple of female business dress – much as the suit and tie are for men. But just because something is traditional, does not mean it is compulsory.
Or does it?
In December 2015 Nicola Thorp, a temp Receptionist was sent home from work, unpaid, for refusing to wear shoes with two to four-inch heels.
Her boss at consulting firm PwC said she was in breach of the “female grooming policy”, even though (as she pointed out), her male colleagues were allowed to wear flat shoes.
Furious, she set up an online petition demanding the government change the law on the issue of workplace dress codes, securing an impressive 90,000 signatories in the process.
So does she have a point?
The legal position on dress code in the workplace
The Equality Act 2010 dictates that employers must not discriminate against their employees on various grounds known as ‘protected characteristics’, such as sex and age.
The media interest, in this case, focused on the apparently ‘sexist’ instruction to wear heels, but it is not, technically, unlawful for an employer to have appearance guidelines.
Nor do these requirements have to be identical for both genders.
Of course, there are good business reasons why organisations may want their staff to present a consistent and smart appearance to the outside world.
Indeed, this is the reason why many brands have uniforms or a prescribed dress code.
It is hard to see, however, why that objective cannot be met equally well by an employee wearing flat – but smart – shoes.
The law in her favour
More than 10 years ago an Employment Appeal Tribunal ruled that a male employee required to wear a collar and tie – while women were given broader choice – had not been discriminated against because women were required to ‘dress appropriately and to a similar standard’.
However, earlier this year female cabin crew at British Airways won the right to wear trousers – achieved through trade union negotiation rather than legal proceedings – signalling that women and men should be treated equally.
Both cases highlighted that dress-code rules should not be more stringent for one gender than the other.
They also revealed that comfort was an issue for consideration, especially with the British Airways case which found that men were being treated more favourably by being allowed to wear trousers.
It is generally accepted that high heels cause pain and potential long term physical damage. The same cannot be said of a tie.
One could argue that forcing women to wear heels is ‘less favourable treatment’ on the grounds of sex and therefore ‘direct’ sex discrimination under the Equality Act 2010.
It could also be argued that wearing high heels could present a health and safety risk.
Uniform policy in many schools prohibits the wearing of high heels, instead insisting girls wear smart, black or brown flat shoes.
One of the reasons for this is that the wearing of high heels comes with overtly sexual undertones.
If this is true, was asking Ms Thorp to wear high heels in the office sexually inappropriate?
Certainly, she was offended that, in addition to the high heels requirement, she was presented with a chart of acceptable lipstick shades, making clear that she was expected to be ‘made-up’ and aesthetically pleasing.
The dress code in this case arguably required female staff to be not only ‘smart’ but ‘sexy’ – a bigger trip hazard for an employer than a pair of stilettos.
After Ms Thorp’s petition, PwC backed down, reviewing its dress code. This was probably a sensible move.
After all, if they were faced with a discrimination claim, they would have to justify the rules, showing that the dress code had a legitimate aim and was applied proportionately.
A recent cultural shift and evidence of potential health problems mean that it is now appropriate to suggest that it is disproportionate to send someone home without pay for wearing high heels.
Advice to employers
When formulating a dress code consider the reasoning behind the requirements within the policy.
Where possible consult with employees before imposing any new or updated policy on appearance and consider whether the policy treats male and female employees comparably.
Think about the impact of the policy requirements on disabled employees and whether any reasonable adjustments may be necessary and consider how the policy might affect those employees who wish to dress a certain way for religious reasons.
Your policy should also take into consideration any health and safety issues.
Finally, you should communicate the policy effectively and ensure it is implemented consistently.
If you need any advice on the issue discussed here, or any employment or HR matters whatsoever, give Lloyd a call on 01206 239761.