When is a shoe not a shoe? When it’s an employment law issue.

A job advert for a new London bar sparked outrage for requesting only “extremely attractive” staff to apply.  Posting vacancies for £10-an-hour waiting jobs, the unnamed Shoreditch jazz bar stated that female applicants must have (along with a minimum of one year’s experience) a “fun, lively attitude”.   The advert, found on employment website Reed.co.uk, also specified that that female applicants “must be comfortable wearing black heels” for full-time waitressing.

Responding to the advert after it was shared on social media, Twitter users said the advertisement was “discriminatory” and “unacceptable in every way” and the post was later removed from the website.  Actress and equality campaigner Nicola Thorp drew attention to the advert, telling Reed.co.uk it was “in breach of an Equality Act or two”.

Ms Thorp made national headlines after she was sent home from her receptionist job for not wearing high heeled shoes. Ms Thorp was employed by Portico to work as a corporate receptionist and on her first day in the role she claimed that that she was told to go home without pay because she refused to buy shoes that had heels between two and four inches high. In an interview with BBC Radio Ms Thorp said “If you can give me a reason as to why wearing flats would impair me to do my job today, then fair enough’, but they couldn’t. I was expected to do a nine-hour shift on my feet escorting clients to meeting rooms. I said I just won’t be able to do that in heels.”

Ms Thorp then launched an online petition, which gathered in excess of 150,000 signatures, to try to make it illegal for employers to force women to wear high heels at work.  Following Ms Thorp’s position, a joint inquiry by the House of Commons Petition Committee and the Women and Equalities Committee was established and they published their recommendations on 25 January 2017. The Committees made three main recommendations:

  • The government should review this area of the law
  • That more effective remedies should be available against employers who breach the law, including injunctions against potentially discriminatory dress codes
  • That detailed guidance and awareness campaigns targeted at employers should be developed

The government provided its response to these recommendations on 20 April 2017, and although it confirmed that it wanted to ensure that women were not held back in the workplace by outdated attitudes and practices, it believed that the current law was to sufficient to protect women from discriminatory dress codes.

The legal parameters for enforcing dress codes are unclear and this creates a minefield for employers. From an employment law perspective, a dress code will not amount to direct sex discrimination if it imposes different requirements for men and women provided that the overall standard of dress is the same.

For example, a dress code that required male staff to wear a shirt and tie and female staff to dress “appropriately and to a similar standard” was not found to be unlawful.  Similarly, a code which allowed women to have long hair, provided that it was clipped back, but prevented men having hair that grew below shirt-collar length was also permissible because the same standard of appearance was applied to both men and women.  However, a dress code which is applied more strictly to men than women, or vice versa, is likely to be direct discrimination.

In Ms Thorp’s case, the question would be whether the requirement for her to wear high heeled shoes meant that Portico’s dress code was being applied inconsistently between men and women, especially if her overall appearance was sufficiently smart. Interestingly, Portico subsequently changed its dress code policy to allow its female employees to wear plain flat shoes or plain court shoes. Ms Thorp commented “I think dress codes should reflect society and nowadays women can be smart and wear flat shoes.  Apart from the debilitating factor, it’s the sexism issue. I think companies shouldn’t be forcing that on their female employees.”

It’s not only sex discrimination that employers need to be conscious of when applying their dress code policies but also transgender discrimination and religious discrimination. Preventing an employee from cross-dressing when this is a necessary precursor to gender reassignment is likely to amount to direct discrimination against transsexual employees.

In relation to religious clothing, policies which prevent employees wearing items which are manifestations of their belief are likely to be indirect discrimination unless the policy can be objectively justified and this point was recently considered by the European Court of Justice.

Given that dress codes can often be a contentious matter within the workplace, it’s not surprising that disputes over how they are applied crop up fairly frequently. Indeed, last year British Airways settled a long running dispute over its dress code after it agreed to allow female new recruits to wear trousers.  Considerable uncertainty remains over the extent to which dress codes can be lawful. The government’s commitment to producing new guidance in conjunction with ACAS and the Health and Safety Executive is helpful, but after 2 years has not been forthcoming.  The lack of cases in this area means that it can be hard for both employers and employees to determine whether, and in what circumstances, a dress code constitutes sex discrimination and the government itself recognises that the law is poorly understood.

Being employment law solicitors we have an unprecedented track record in winning employment cases. Should you require any further advice on any of the issues raised above, please feel free to contact us.