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Discriminatory Dress Codes; Just How Far Can An Employer Go?

Over the last few weeks, a few stories have hit the headlines which have, naturally, sparked the interest of many.  These relate to the dress code and appearance requirements of some employers which are potentially discriminatory.  Here I take a look at the reported stories and offer insight into why the requirements are potentially discriminatory.

High heels

The first of the stories to hit the headlines was that of Nicola Thorp who was sent home by a firm for refusing to wear high heels at work.  On her first day as a receptionist, she objected to being required to wear high heels as she would spend the majority of the day on her feet.  Ms Thorp was told to either go and purchase some heels or be sent home without pay.

So, it is legal to require staff to wear high heels?  Unlikely.  Whilst employers can impose dress code demands, these must be reasonable.  They must also ensure that any conditions posed are a genuine occupational requirement and do not place a particular group of people at a disadvantage.  For example, a dress code requiring smart, black footwear would not be discriminatory.

The policy is potentially discriminatory on the grounds of sex and disability.  The argument for sex discrimination is apparent to most, as the policy would not apply equally to men but it also potentially puts women at a disadvantage if they cannot undertake their duties whilst wearing comfortable footwear.  Let’s also not forget that the policy could also be discriminatory against pregnant women who were required to wear heels whilst pregnant.

It is also potentially discriminatory on the grounds of disability.  Some people who have a disability or longstanding condition may not be able to wear heels for medical reasons, so the requirement puts them at a disadvantage as well.

Make-up

Only a few days later followed news of Carla Baird, who worked as a receptionist at a law firm in Leeds.  Not only was she subject to a policy on high heels, she was also required to wear a minimum amount of make up for work and wear her hair tied up in a particular manner.

Again, discrimination rears its head as it is likely men would not be told how to style their hair, that they must be clean-shaven or wear make-up for work.    That said, women aren’t the only ones affected. This particular news story also reported men who were subjected to unreasonable appearance demands, such as wearing a shirt, tie and waistcoat for work even in stifling heat (whilst women were not) or wearing what would generally be considered ‘business attire’ when undertaking manual work. These men would potentially have a claim of discrimination on the grounds of sex if women weren’t required to wear something comparable.

Hair

The latest story which landed this week related to an (unnamed) woman who was told not to attend work with her hair styled naturally in an ‘afro’.  She was encouraged to wear a weave and was made to feel her hair did not portray a professional image.  The woman was West African and felt pressured to conform to her employer’s requests.

This raises issues of potential discrimination on the grounds of sex, race or nationality and religion or belief.  It is difficult to foresee any successful argument being made that the afro isn’t professional.  What about those with thick curly hair, red hair or those who are bald?  Would they potentially fall foul of a requirement that hair should be styled in a manner deemed to be professional?

How far can employers go?

It’s really down to the longstanding adage of ‘being reasonable’.  By all means adopt a dress code, absolutely require staff to portray a corporate image through their appearance and attire but ensure any such requirement does not place a group of people at a disadvantage and is well thought-out.

Do you have a dress code in place?  If so, when was it last reviewed?  Or are you thinking of introducing a dress code?  At SCE Solicitors we have a wealth of experience in advising companies on how to minimise discrimination in the workplace.  If you would like to discuss your policies, please contact me on 0113 350 4030 or at hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

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