Walking a fine line in high heels – the dress code debate

Nathan Combes is a senior associate in Lupton Fawcett Denison Till’s employment law department.

Few of you will failed to have noticed the media storm caused earlier this month after it emerged that a female receptionist was sent home after she refused to comply with a dress code requiring her to wear high heels.

A subsequent online petition complaining that the requirement was “outdated and sexist” attracted over 100,000 signatures and it has been reported that the company at the centre of the furore has now changed its dress code to permit the wearing of flat shoes.

There is no issue in principle if an employer wishes to operate a formal dress code (many employers do). However, employers need to be able to justify the requirements of their dress code as they can sometimes give rise to claims of unlawful discrimination on grounds including sex, religion, disability and gender reassignment.

Contrary to the impression created by the recent ‘high heels’ case, it is possible (and in actual fact quite common) for employers to impose different requirements for men and women in terms of any dress code that they may operate – for example the requirement to wear a tie typically relates to men only.

The key consideration for employers who wish to impose different requirements for their male and female employees is that neither gender should be subjected to requirements that are more onerous than the other. In short, employers should seek to adopt an even handed approach.

It’s not just sex discrimination that employers need to be aware of though. Dress code requirements will sometimes be discriminatory for other reasons. There have been a number of cases in recent years concerning employers whose dress code prevents employees’ rights to wear clothing or jewellery which is associated with their religious beliefs, such as a veil or a cross.

Employers in these types of cases need to be able to justify the requirements of their dress code as a proportionate means of achieving a legitimate aim.

Additionally, if a dress code requirement puts a disabled employee at a disadvantage (compared to a non-disabled person), then that will trigger the employer’s duty to consider whether any reasonable adjustments can be made to remove or lessen that disadvantage.

In simple terms, flexible dress codes inevitably cause fewer problems for employers and employers should be willing to consider whether it would be appropriate to relax or alter dress code requirements where those requirements place a particular employee or group of employees at a disadvantage that cannot ultimately be justified.

For further help or advice, please contact Senior Associate Nathan Combes on 01904 561449.