Dress codes and sex discrimination a guide for employers

The Government has published new guidance (May 2018) for employers who set dress codes in the workplace and job applicants who may have to abide by them.

The guidance has been published following a recommendation from the Parliamentary Women and Equalities Select Committee and the Petitions Committee. It sets out how the law might apply in cases of sex discrimination where an employer requires female staff to wear for example high heels, make-up, hair of a particular length or style or revealing clothing.

It will remain the responsibility of the courts to decide whether a practice is unlawful.

When setting a dress code, the employer has the responsibility to ensure that the dress code is a legitimate part of their terms and conditions. They should not discriminate between men and women but should uphold equal standards. Any less favourable treatment because of sex could be discrimination.

Dress codes should not lead to harassment by colleagues or customers, so any requirements for women to dress in a provocative manner are likely to be unlawful on those grounds.

A good starting point when considering a dress code is the reason behind it. Therefore, consulting with employees, staff organisations and trade unions is advisable to ensure the code is acceptable to both the organisation and staff. Health and safety should also be considered, especially if specifying a particular item for a dress code rather than personal protective purposes makes staff more prone to injury. Once it has been agreed it should be communicated to all staff.

Where someone meets the definition of a disabled person in the Act, employers are required to make reasonable adjustments to any element of the job which place a disabled person at a substantial disadvantage compared to a non-disabled person.

Transgender employees should be allowed to follow the organisation’s dress code in a way which they feel matches their gender identity and if there is a staff uniform they should be supplied with an option which suits them.

Employers should be flexible and not set dress codes which prohibit religious symbols that do not interfere with an employee’s work.

Examples of where an employer may fall foul of the guidance include:

• Requiring female employees to wear high heels as part of a dress code but places no footwear requirements on men or merely requires them to look smart. This is likely to constitute direct discrimination on the grounds of sex as there is not an equivalent standard set on male staff. It may also indirectly discriminate against employees with a disability, where heels could exacerbate any difficulties with mobility or place them at risk of falling.
• A clothes shop which expects staff – both male and female to dress in a provocative or revealing fashion. Whilst this might not amount to direct discrimination, it could contribute to an environment where employees are vulnerable to unwanted sexual attention or harassment.

Employees cannot be dismissed for making a complaint solely about a sexist dress code, as The Equality Act 2010 provides protection from victimisation.

If an employer needs further assistance on work wear or jewellery which an employee may ask to wear for religious reasons, the Equality and Human Rights Commission publishes guidance.