Jean-Yves Gilg

Editor, Solicitors Journal

Stiletto storm

Stiletto storm


The headlines this week generated by Nicola Thorp, the receptionist who was sent home because she refused to wear two- inch high heels, has again highlighted the issues that employers need to consider when applying their dress code policies.

Thorp was employed by Portico to work as a corporate receptionist and, on her first day in the role, was told to go home without pay because she refused to buy shoes that had heels between two and four inches high. Thorp has since launched an online petition, which has already gathered more than 122,000 signatures,
to try to make it illegal for employers to force women to wear high heels at work. Given that dress codes can often be a contentious matter within the workplace, it is not surprising that disputes over how they are applied crop up fairly frequently. Indeed, earlier this year, British Airways settled a long-running dispute over its dress code after it agreed to allow female new recruits to wear trousers.

So, what are the legal parameters for enforcing dress codes? From an employment law perspective, the starting point is that a dress code will not amount to direct sex discrimination if it imposes different requirements for men and women, provided that the overall standard of dress is the same. For example, a dress code that required male staff to wear a shirt and tie and female staff to dress 'appropriately and to a similar standard' was not found to be unlawful.

Similarly, a code that allowed women to have long hair, provided it was clipped back, but prevented men having hair that grew below shirt-collar length was also permissible because the same standard of appearance was applied to both men and women. However, a dress code that is applied more strictly to men or women, or vice versa, is likely to be direct discrimination.

In Thorp's case, the question would be whether the requirement for her to wear high-heeled shoes meant that Portico's dress code was being applied inconsistently between men and women, especially if her overall appearance was sufficiently smart. Interestingly, Portico has subsequently confirmed that it is changing
its dress code policy to allow its female employees to wear plain flat shoes or plain court shoes.
A spokesman for the Equality and Human Rights Commission also confirmed that it would have allocated a team to look into the case if the policy had
not been changed.

It is not only sex discrimination that employers need to be conscious of when applying their dress code policies but also transgender discrimination and religious discrimination as well. Preventing an employee from cross-dressing when this is a necessary precursor to gender reassignment is likely to amount to direct discrimination against transsexual employees. In relation to religious clothing, policies that prevent employees wearing items which are manifestations of their belief are likely to be indirect discrimination unless the policy can be objectively justified.

Attitudes towards standards of dress are evolving all the
time and what may have been viewed as unacceptable clothing in the past may be much more permissible now, but through these changes employers need to ensure
that their dress code policies maintain a balanced and consistent approach.

Nick Le Riche is a partner at Bircham Dyson Bell @BDB_Law