It is sad that in the 21st century we are still having to talk about gender pay gaps, but even more troubling is the fact that it is relatively common that female employees are still having to pursue matters in the Employment Tribunal for unjustifiable discrimination when they have refused to concede to outdated requests for them to wear high heels (whilst working on reception) or a skirt suit to look “smart and feminine”.

The Petitions Committee and Women and Equalities Committee has published their report "High heels and Workplace Dress Codes", revealing the troubling experiences of workers affected by discriminatory dress codes. The report states: ‘The Government has said that the existing law is clear, and that the dress code that prompted this petition is already unlawful. Nevertheless, discriminatory dress codes remain widespread. It is therefore clear that the existing law is not yet fully effective in protecting employees from discrimination at work. We call on the Government to review this area of the law and to ask Parliament to change it, if necessary, to make it more effective.

The relationship between the provisions of the Equality Act 2010 and workplace dress codes is not widely understood. The Government has said that it expects employers to inform themselves about their legal obligations and to comply with the law. This is fair enough but the reality is that this approach is just not working. The Committee is calling upon the Government to do more to promote understanding of the law on gender discrimination in the workplace among employees and employers alike.

The Joint Committee has stated “ We recommend that the Government substantially increase the penalties available to employment tribunals to award against employers, including the financial penalties. At present, such penalties are not sufficient deterrent to breaking the law”.

You may recall the plight of Nicola Thorp who turned up for her first day at PWC working on reception and was sent away without pay when she refused to wear high heels (between 2 – 4 inches in accordance with the dress code guidance.  I 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.”  PWC were not in breach of any law, but one does have to question how justifiable it is.  It should be remembered that placing dress code restriction on one sex but not the other does not necessarily mean that there is discriminatory treatment. Much will depend on the explanation by the Employer for the distinction.

A quick recap:

In  Secretary of State for DWP v Thompson [2004] IRLR 348 the Employment Appeal Tribunal decided that it was not necessarily discriminatory to impose a certain dress code on men (i.e. the requirement to wear a shirt and tie) but not on women.  Compare this with Hutchieson v Graham and Morton Ltd [2007]  where a senior female manager was required to wear the same nylon overalls as the rest of her female team. The males on the other hand were allowed to wear lounge suits. It was held that this amounted to a detriment because the uniform pointed towards a lower status than that of male employees of a lower rank which constituted sex discrimination.

To summarise case law suggests that restrictions on choice of dress and appearance do not have to be identical for both sexes provided that, taken ‘in the round’; they are imposed to an equal degree and only if the requirements, taken as a whole, place an unequal burden upon one of the sexes for which a detriment is suffered that will they be challengeable.