What not to wear – Health & Safety, Discrimination & Dress Code Dramas

The inquiry, undertaken by the Women and Equalities Committee and the Petitions Committee, heard from hundreds of women about their experiences, which included being required to wear make-up, dye their hair blonde and wear nail polish from a prescribed palette of colours. One witness, who worked in the retail sector, explained in her evidence that her employer had encouraged female staff to wear shorter skirts and unbutton their blouses at Christmas time when it was anticipated that there would be more male customers.

It is hardly surprising that the Joint Committee's subsequent report, issued in January 2017, found that the existing law is not fully effective in protecting employees from discrimination at work, and that inappropriate dress codes remain widespread. The report called on the government to review this area of law, recommending that the penalties employment tribunals can award in such circumstances should be increased and that injunctive relief should be made available to employees who wish to stop their employers insisting on certain dress codes.

In the wake of the report, we take a closer look at some of the issues facing employers when telling their employees what they can and can’t wear in the workplace.

What protection does the law currently give?

The Equality Act 2010 provides that an employer cannot discriminate against employees based on certain protected characteristics including but not limited to sex, gender reassignment, race, disability and religion. If the provisions of a dress code policy mean that an employee is subjected to less favourable treatment on the grounds of a protected characteristic, such a policy would be discriminatory.

It's important to draw a distinction between direct and indirect discrimination. Let's take gender as an example. A policy provision which applies only to female staff could be directly discriminatory if it subjects women to less favourable treatment, when compared to their male colleagues. However, a policy provision that applies to all staff equally could nevertheless be indirectly discriminatory if it places women at a particular disadvantage, unless it can be objectively justified. This would require an employer to show that the provision was a proportionate means of achieving a legitimate aim.

In addition to discriminatory considerations, employers also have legal obligations to consider dress codes as part of workplace health and safety assessments. 

Why are dress codes still so problematic?

The government believes that the existing law is clear: a dress code requiring an employee to wear high heels is unlawful under the Equality Act 2010 as it constitutes less favourable treatment based on sex. However, the Joint Committee delved deeper, looking specifically at requirements such as those which dictate that female employees must wear make-up to work. Would this really meet the test for direct discrimination? It could be argued that such a requirement does not amount to less favourable treatment, as many women choose to wear make-up to work voluntarily. The Joint Committee made a somewhat ambitious suggestion that if a significant proportion of direct discrimination cases fail because employees cannot establish less favourable treatment, the government should adapt the test to put more weight on the subjective element - the claimant’s feeling of being discriminated against – and issue guidance to this effect. The implications of such a change may be significant. If a Tribunal could give greater consideration to a claimant's own view that he or she had been subject to less favourable treatment, employers would be more exposed to successful claims being brought against them.

The application of the existing law to apparently neutral dress code requirements, which apply equally to all employees, is also unclear. These could give rise to indirectly discriminatory requirements which can be objectively justified, however you need only look at the recent opinions of the Attorney General in ECJ cases relating to headscarves in the workplace to realise that the question of justification is open to interpretation (see the previous summaries by our Danish team here and here). When deciding in the UK whether a discriminatory practice is a proportionate means of achieving a legitimate aim, Tribunals must carry out an objective balancing exercise between the discriminatory effects of the employer's actions, and the reasonable needs of the employer. The Joint Committee recognised in its report that this may result in inconsistent Tribunal decisions and suggested that the possible legitimate aims should be clearly prescribed.

The Report proposed four legitimate aims in relation to dress codes: (i) health and safety; (ii) to establish a truly necessary public image, for example, the judiciary; (iii) to project a smart and uniform image; and (iv) to restrict dresses or insignia which may cause offence. But do these take us any further forward? They are so broad and subjective in nature that we consider they raise more questions than they answer. Moreover, it would presumably be rather easy for an employer to suggest that a requirement to wear make-up is reasonably necessary to ensure a "smart and uniform" image.

What does all this mean for employers?

Parliament is due to debate this issue on 6 March 2017 and the government has indicated it will publish its response to the report within two months of the debate. It remains to be seen whether the government will follow any of the Joint Committee's recommendations, but given the publicity surrounding this issue, it is likely that workplace dress codes will be subject to greater scrutiny going forward.

At the very least, employers can expect some more detailed guidance in this area. The Joint Committee has suggested that ACAS and the Health and Safety Executive should publish updated guidance by July 2017 to help employers better understand how discrimination law and health and safety law apply to workplace dress codes.

To reduce the risk of any bad publicity or scrutiny, employers should take the opportunity to review any dress code requirements, bearing in mind the following:

• First and foremost, consider if your existing company dress code is reasonable. Is there a clear rationale behind provisions that affect certain members of your workforce more than others? If there are stringent requirements in your sector (eg. a uniform), consider if the rules for men and women are disparate, as well as any impact they may have on employees’ religion, belief, race or gender reassignment.
• Be flexible where possible. Consider whether it is appropriate to adapt any requirements to account for the circumstances of particular employees. For example, if an employee whose cultural or religious background makes it difficult for them to comply with your dress code policy, you should consider whether appropriate (and safe) exceptions can be made.
• Consult with employees. If your dress code requirements are likely to be received unfavourably, you should consider whether it's necessary to implement them at all. Consultation with employees or trade unions before you implement them can help in this decision. After a two year dispute with Unite, British Airways recently agreed to allow a certain section of its female cabin crew to wear trousers and abolished a previous policy which required them to wear skirts unless they were exempt on medical or religious grounds.
• Less can be more. If ultimately all you want is for your employees to look presentable, consider whether simply saying so is enough. You can then have one to one conversations with any employees who don’t meet your reasonable expectations.