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10 February 2017

Talking about Dress Codes

Talking about Dress Codes: what will the current high heels debate ultimately mean for employers?

The resounding conclusion of the parliamentary Joint Committee on 25 January 2017, following its investigation into Nicola Thorpe’s online petition objecting to workplace requirements for high heels, was “Are we really still in an age where dress codes in the workplace are sexist and operate to place woman at a disadvantage?

The press has focused on the sexual objectification of women through being asked to wear high heels, dye their hair blonde, or wear revealing clothes in the workplace. Whatever the specific complaint is, the message is clear: inequalities in dress codes are still a live issue.  

Dress codes are frequently in the Courts. Most recently, national and European Courts have had to consider the lawfulness of employers holding headscarves (and other religious symbols) contrary to their workplace dress codes (see our previous briefing note of July 2016 here.) This note explores how the Joint Committee’s recommendations for Dress Codes could result in legislative change or at the very least significant public pressure.

The changing face of discrimination law

The Joint Committee considered over 750 written complaints provided to it following the online petition to ban employers from requiring women to wear high heels at work.  (We read some of these too, but not all!)  The Committee was so concerned by apparently obvious breaches of equality that it has recommended fundamental changes to discrimination law. 

The Equality Act 2010 prohibits different types of discrimination because of protected characteristics such as gender.  There is no defence to direct discrimination (except in relation to age) if there is less favourable treatment because of the protected characteristic. Principally, the Committee recommended that the hurdle for establishing direct discrimination claims is lowered by changing the objective test of “less favourable treatment” into a subjective one.  Such change would mean that the employee’s own feelings of being subjected to discrimination would determine whether discrimination had occurred, making it easier for employees to overcome a hurdle in establishing direct discrimination.

Further, the Joint Committee recommended categorising the legitimate business aims that employers can rely on in defending indirect discrimination claims (at least in relation to dress codes).  Indirect discrimination can occur in the workplace when an apparently neutral policy is applied equally but disproportionately disadvantages a particular group of employees who share the same protected characteristic (e.g. gender).   While this may give rise to indirect discrimination, the employer has an opportunity to defend the claim if it can demonstrate that its policy (in this case its Dress Code) is a proportionate means of achieving a legitimate business aim.  The Committee has suggested legitimate aims for employers might be: (a) health and safety; (b) to establish a necessary public image; (c) to project a smart and uniform image; and (d) to restrict dresses or insignia which may cause offence.

These suggestions follow recent cases where employers have succeeded in proving their legitimate aims.  However, they raise some interesting questions as even if an employer has a legitimate aim, its dress code might still not be the best way or the most non discriminatory way of achieving that aim. 

In Achbita and another v G4S Secure Solutions NV (a Belguim case) and Ebrahimian v France (a French case) employers were able to successfully defend claims for indirect discrimination brought by employees asserting their rights to wear items of clothing which manifested their Muslim beliefs in the workplace. The employers’ policies of neutrality were found to be proportionate means of achieving legitimate aims of a neutral staff uniform. However, a persuasive factor in the Ebrahimian decision was the French constitutional right of secularism that does not exist in UK law.  The Achbita case remains one to watch as the European Court of Justice (ECJ) is yet to rule on whether the decision was correct.

In contrast, in another French case, Bougnaoui v Micropole SA, an employee’s dismissal for wearing a Muslim headscarf was deemed directly discriminatory and the employer’s criterion of not wearing headscarves in front of customers was incapable of justification as being based on a genuine occupational requirement under the Equal Treatment Framework Directive. The Attorney General opined that in cases where there is a need to balance the commercial interests of a business and an employee’s right to manifest their religion, the latter would prevail.  Bougnaoui is also awaiting a final decision now from the ECJ.

What these cases demonstrate is that one employer’s means of achieving its legitimate aim, may not be the same as another’s. 

In the current context of dress codes requiring female employees to wear high heels, revealing clothes or dye their hair, it is hard to see how any employer would be able to justify these polices as proportionate.  It is likely such dress code policies would fall within category (c) of the Committee’s recommendations (to project a smart and uniform image), but given that employees could easily project a smart and uniform image without resorting to sexist dress codes the prescriptive nature of the policy  will be unjustifiable. Smart flat shoes, clean clothes and tidy hair will, in reality, achieve this aim in most businesses.

The Committee’s report further suggests that the Employment Tribunal should have the power to grant interim injunctions (e.g. to suspend the alleged discriminatory part of a dress code) and to impose higher financial penalties on employers who impose discriminatory dress codes (e.g. a payment made to each worker who has suffered discrimination).

What does this mean for the workplace?

Employers, especially in the retail sector where uniforms or standards of dress code are more stringent, need to be aware of the risks of harbouring a discriminatory environment through their dress code policies. Whilst the most obvious area to focus on is the dynamic between male and female dress codes, employers need to pay attention to other potential discriminatory areas such as requirements which may relate to employees’ religion, belief or race.

Training for managers and those enforcing dress codes will be crucial preventative measures in combating potential discrimination claims.

Employers are encouraged to review their dress code policies in the wake of the Joint Committee’s report as this area will continue to be under heightened scrutiny in the coming months.  Even apparently neutral dress codes may inadvertently give rise to unlawful discrimination.   

Dress codes which may negatively impact a group of employees because of a protected characteristic that they share should be reviewed in light of the current debate and recent case law.

In practice, change to the Equality Act 2010 might be a step too far or at least will be a long way down the line.  However, a short stand alone regulation under the Act dealing with workplace dress codes is not beyond the realms of possibility.  Public pressure however might have the most immediate impact on dress codes:  the practice of “naming and shaming”  is a popular Governmental tool!

Track the action

What’s next? Nicola Thorpe’s petition had over 152,000 signatures and will be debated in Parliament on Monday 6 March.  The Government will then have two months to publish a response to the report. The Government Equalities Officer has been given the deadline of July 2017 to work with ACAS and the Health and Safety Executive to publish detailed guidance on dress codes.

The pressure is on the Government to ensure the protection offered by the Equality Act 2010 is available to employees in practice, and that employers are held accountable for any breaches of the law in a proportionate way. The findings of the Joint Committee are overwhelmingly that employers are happy to risk non-compliance due to the minimal consequences for doing so.

However, the Joint Committee report recommendations require significant changes to the Equality Act 2010 which we believe are unlikely to happen solely due to pressure exerted from dress code legislation. 

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