'It is clear the Equality Act 2010 is not yet fully effective in protecting workers from discrimination.' This is the damning conclusion reached by the Parliamentary Petitions Committee and Women and Equalities Committee in their report into dress code discrimination in the workplace published on Wednesday. The report was prompted by a petition started by Nicola Thorp, which received in excess of 150,000 signatures. Readers will recall that Ms Thorp was a secretary provided by the agency Portico to PwC's offices, who was sent home without pay in December 2015 when she refused to wear high heels to work.
We have set out the legal position on dress codes in previous articles, which can be found here, here and here. However, to recap:
• Imposing a dress code that constitutes less favourable treatment and applies only to employees with a protected characteristic (age, disability, gender etc.) will be directly discriminatory and unlawful.
• A dress code that applies to all employees can stipulate different requirements for men and women, provided that the rules represent the same overall standard of dress for both sexes.
• If this has the effect of putting one sex at a disadvantage, there will be indirect discrimination. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.
• Reasonable adjustments should be made for employees with a disability that the employer knows or ought reasonably to know about.
The Report's findings
The Committee was inundated with responses from women who had long term damage from wearing high heels, or who had been required to dye their hair blonde, to wear revealing outfits or to constantly re-apply makeup. They also received written evidence from the College of Podiatry, who state that there is, 'a strong body of clinical evidence that significantly indicates the medical and disabling effects of wearing a high heel shoe over a prolonged amount of time.' In the context of a dress code that requires men to wear normal smart office shoes (for which there is no such evidence), this clearly constitutes a disadvantage and even if it was (tenuously) argued that this was required to fulfil the legitimate aim of projecting a certain corporate image, it is difficult to see how it could be a reasonably necessary way of doing so.
Portico's dress code was an extreme example and it is unsurprising that the report found it to be clearly discriminatory. The government was at least partly right then, in its response that this type of practice was already unlawful based on existing equality legislation. However, the report goes further by calling out the government on this unsatisfactory response, pointing out that the nature and extent of responses it had received clearly showed that the current regime is not being adequately enforced. It found that employers do not feel sufficiently deterred by the relatively insignificant compensation awarded to successful claimants, or are simply willing to 'take a punt' on vulnerable employees not wanting to take the risk of bringing a claim. Its recommendations are therefore focused on making the law more enforceable, rather than significantly changing the substantive measures of equality legislation.
The Report's recommendations
The Report made three major recommendations:
• for the Government to review this area of the law and to ask Parliament to amend it, if necessary, to make it more effective;
• more effective remedies for employment tribunals to award against employers who breach the law; and
• detailed guidance and awareness campaigns targeted at employers, workers and students.
Employers will probably be most concerned about the second of these recommendations at this stage. Mindful of the finding that employers are not sufficiently deterred, one of the Report's key proposals is to significantly increase the financial penalties for employers found by employment tribunals to have breached the law. Conversely, the Report aims to support potential claimants, by allowing employment tribunals to award injunctions preventing the enforcement of the dress code on any of the company's employees whilst the case is being decided.
Implications for employers
On top of the significant reputational damage that can be caused by a questionable policy (just ask Portico/PwC), and the obvious risk of damages being awarded to a successful claimant, employers should be wary of this proposed additional suite of damaging sanctions and an increased likelihood of employees bringing claims.
Employers should therefore take the report as their cue to revisit their dress code policy and ensure it is in line with the legal framework summarised above. We recommend that employers scrutinise the wording of the policy to ensure it reflects the rationale behind it, which is a key step to showing that it is not gratuitously discriminatory and complying with equality legislation. Ultimately though, a change of wording will not save a policy that is fundamentally out of date, in which case the policy itself needs to be updated to reflect a more measured approach to achieving a legitimate business aim. This often comes down to an interpretation of current societal attitudes to suitable dress, which is a subjective judgement call by nature. When in doubt, employers should act cautiously, consult with relevant stakeholders (notably employees), and seek legal advice where appropriate.