High Heels, Lipstick and Nail Varnish - An Employment Law Perspective
Nicholas Lakeland, Silverman Sherliker’s Head of Employment and Pensions department, considers a topical matter that may affect every office in the country.
I do not often get the opportunity to write about high heeled shoes, make-up and dress codes, but joint the parliamentary report published by the Petitions Committee and Women and Equalities Committee on High Heels and Workplace Dress Codes gives me the opportunity to do just that.
It is a first report and follows on from a petition signed by 150,000 people calling on government to make the enforced wearing of high heeled shoes illegal.
The petition was started by a lady called Nicola Thorp who was employed by an temporary agency, Portico, who in turn supplied her as temporary receptionist to PwC.
Portico has a historic and detailed dress code policy for its temporary receptionists, which included the requirement to wear high heeled shoes with heels between 2 and 4 inches long.
When Ms Thorp turned up to her temporary assignment at PwC with respectable flat heeled shoes, she was asked to change them. She refused to wear high heeled shoes and was consequently sent home.
There are several interesting aspects to this initial report.
The report examines in detail the physiological effects caused by women being asked to wear high heeled shoes. It is clear that various ailments result from bad backs, wear and tear around the knee joints through to conditions causing loss of balance and that wearing high heeled shoes is just not very good for you.
Apart from the health and safety aspects of a dress code, which requires a woman to wear high heeled shoes the report then goes on to deal with the employer’s knowledge as to their legal requirements relating to dress code.
It comes abundantly clear that there are many employers who are completely unaware that dress codes also brings with them a legal pitfall simply because they have never addressed their mind to the issue.
It is clear that employers have little guidance available to them and ACAS only has limited guidance available for them leaving it to the Equalities Commission to provide it instead but that simply has not been an adequate resource.
Several themes emerge and what is really striking is how little discussion I was asked to have on the impact of a dress code on men as well as women in the workplace.
Quite apart from the obvious physiological differences between men and women which necessitate some differences in the way our clothes are styled there seems little logic in the way clothes work dress code seem to have evolved. In essence dress codes appear to have been some instances effectively reinforced societies existing view of how men and women should dress in the modern world.
Men wear suits, women wear women's suits, men wear ties and flat shoes, women wear heels, etc.
There is scant case law available to guide us. The most notable case was brought in 2003 by Mr Thompson against the Department of Work and Pensions. He objected to the Civil Service Dress Code that insisted that men wore collars and ties and women were only directed to wear equivalent smart clothing. The Employment Tribunal found that the DWP dress code amounted to direct sex discrimination as Mr Thompson was only required to wear a tie as he was a man. However the Employment Appeal Tribunal (EAT) allowed the Appeal. The EAT considered what it meant to dress in a professional and business-like manner. It considered that both, men and women, in this case were required to dress professionally, even women were not required to wear a tie. It found that the Employment Tribunal had not adequately considered whether Mr Thompson had been discriminated against on the grounds of his sex and remitted the decision of to a freshly constituted Employment Tribunal. Unfortunately the case does not appear to have been fought after that.
A further case challenging the dress code policy was brought by Mr Dansie against Commissioner of Police of the Metropolis in 2009. Mr Dansie who was training as a police constable was told to have his shoulder-length hair cut otherwise he would be face disciplinary action. The police force’s dress code policy stated that the standard of dress should be smart and fit for purpose. Mr Dansie had sought confirmation prior to starting his training that the length of his hair complied with the dress code policy. Guidance from separate managers was that hair had to be neatly and securely tied close to his head.
The Employment Tribunal had found the dress code policy was to be considered as a whole and when looking at it as a whole the test must be that neither sex must be treated less favourably. The Employment Tribunal also found that a dress code could be gender-specific or even gender-neutral in so far as it was fair and complied with the requirements of the profession. The Employment Tribunal found that the policy in that instance was gender-neutral. Women, therefore would have been treated in the same way. Thus, Mr Dansie’s treatment was no less favourable on the grounds of his sex. Mr Dansie appealed the decision but the EAT referring to the findings in the case of Mr Thompson dismissed the appeal.
It would seem to me that this is a topic ripe for discussion and review. I am of course not for one moment suggesting that we should restrict peoples ability to express themselves by wearing different clothes but the question of what is appropriate in the workplace is clearly one which is going to require us to think through the consequences of the dress codes that are imposed.
In times past men wore high heeled shoes; indeed if you were a wealthy many you were 'well heeled' meaning you wore high heeled shoes. It is only a relatively modern fashion from the 1920s that suggested that women should wear high heeled shoes. But why should this only apply to women?
Equally a man wearing a kilt at work is likely to lead to a few raised eyebrows particularly south of the border but is that legally right? Is it fair on men? It seems to me that it might be as much an act of sex discrimination to forbid men to wear kilts as to force women to wear high heeled shoes.
The Committee is going to continue its work and further legislation is threatened. One thing of sure this will make a fascinating debate and may change work attire forever.
Nicholas Lakeland and his colleagues advise on employment law, pensions and HR. For any advice, please contact them as follows: