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Bringing sexist dress codes to heel…

Recently, a company hit the headlines for all the wrong reasons after the agency it used to supply reception staff, sent a female staff member home because she was refused to wear high heels. 

Public facing roles are often subject to requirements about appearance but this incident raises questions about whether gender specific dress codes are actually sexist and outdated. Over the last 20 years, the courts have adhered to what might be termed ‘traditional’ views on what it means for men and women to dress appropriately: In 1996, the courts had no trouble in finding that a supermarket could require their deli counter workers to dress in a smart and conventional way; meaning that men were not allowed to have long hair, whilst women were; In 2004, courts confirmed that requiring employees to ‘dress appropriately and to a similar standard’ meant that men could be required to wear a suit and tie, without there being any sex discrimination, even though women had a greater choice in what they wore;  

In 2010, a decision to dismiss a male police recruit, who wore his long hair in a manner that complied with a gender neutral dress code and which would have been acceptable for female police recruit, was upheld as being fair and non-discriminatory. It’s hard not to consider that although only a few years have passed since these decisions, the cases look out of date.  Why should a man be unable to wear long hair at work and why should men and women have different levels of choice in terms of what they can wear?

Does there remain a place in today’s workplaces for women being required to wear heels at work when a man does not have to? Certainly the wide press coverage and public uproar about this recent “shoes” incident indicates that the previous judgements of the courts in facilitating different dress codes between the sexes are starting to look out of date. And in a recent case a café manager who was sacked for refusing to wear a tight low cut top, brought a successful claim for sexual harassment.

The real issue is that given the developments in society’s views on gender norms, has what is accepted as ‘conventional’ for each gender to wear changed?  Can employers really justify requiring men and women to dress in a specific and perhaps outdated way?  With David Cameron sporting an open necked shirt and Theresa May occasionally wearing flat shoes without being thrown out of Parliament, it is clear that what is appropriate business dress has moved on.

The question for employers if not now, then soon, will be how to formulate a dress code that’s appropriate for their business and then to implement it fairly.  Applying dress codes in a gender neutral manner looks sensible, leading to better employee engagement as well as a more diverse workforce, with the added benefit of avoiding any allegations of discrimination based on sex or sexual orientation. It is also worth remembering that it is unlawful for a person to be treated less favourably because of their gender reassignment.

Employers will need to bear in mind that with all the recent focus on sexist dress codes, religious dress can also be a factor for employers to consider.   Employees may turn up wearing clothes or accessories linked to their religion, which conflict with the employer’s dress code and employers will need to consider whether their potentially indirectly discriminatory requirements can be objectively justified.  When a BA employee wanted to wear a two inch cross on a necklace, BA initially objected but the European Court of Human Rights held that the interference to the employee’s rights to manifest her religious rights could not be justified.  However a nurse failed in a similar claim because the hospital could justify its objection to the necklace on health and safety grounds.  Similarly asking a teaching assistant not to wear a niqab veiling her face was justified as it prevented effective communication with her pupils.  Remember that there are specific legal exemptions to enable Sikhs to wear a turban instead of a safety helmet in all workplaces. From our perspective, a dress code should be gender neutral (because we cannot see a reason any other approach could ultimately any longer be justified) with exceptions to cater for particular characteristics or preferences. In short, it’s clear that views are changing and that it is time dress codes were brought to heel!

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