Can employers ask us to change our appearance?
25 January 2017
MPs have called for companies with sexist dress codes to be fined. But many jobs do have requirements for employees' appearances. "No, however a policy of requiring women to wear high heels would likely amount to sex discrimination which is unlawful," says employment law solicitor Laura Allner, a senior associate at CMS. "Where a policy clearly treats women less favourably than men, for example applying strict image criteria to females but no corresponding rules for men, then this would constitute direct sex discrimination, to which there is no defence." Mrs Allner adds: "A policy of wearing high heels would almost certainly be considered 'indirectly discriminatory' provided a female complainant could show that the policy puts women - and her in particular - generally at a disadvantage.  Given the health issues associated with high heels, this argument would have merit. "It would then be open for the employer to try to defend its dress policy.  To succeed the employer would need to show that it has a legitimate business interest for implementing the policy, and that its dress code is a measured way of achieving that. "Where the defence is purely aesthetic, it would almost inevitably fail.  It is almost impossible to see how a tribunal could find a policy of requiring high heels justifiable - why not allow smart, flat shoes? "Further, if an employee suffered from a disability, the employer is under a duty to make reasonable adjustments. So if health reasons meant that wearing heels was not appropriate, the employer would need to adjust its policy." Employers can implement a dress code to ensure that employees are dressed in a manner that is appropriate for its particular business, provided this would not be deemed discriminatory. Mrs Allner says: "A key issue is whether or not the employer can justify its policy - namely, show that the dress code being implemented is proportionate for it to achieve its particular business aim. "For example, if there are health and safety reasons requiring employees' hair to be kept in a particular style, then this may be justifiable.  If a policy is purely implemented for stylistic reasons, then it is less likely to be justifiable. "Previous high profile cases have considered bans on wearing religious items. The case law shows that the cases are very fact specific." An employee can raise a grievance (either informally or formally) with his or her employer. "If having done so, the employee wishes to take the matter further, it may be possible to raise a complaint of unlawful discrimination in an employment tribunal, if they have first sought to resolve the matter through the Advisory, Conciliation and Arbitration Service, which is now mandatory," says Mrs Allner. "It would be advisable to take legal advice before doing so, to understand the legal merits of the case.  Where an employee has been dismissed, or resigns in response to a discriminatory policy, the employee may also have a claim for unfair dismissal," she adds. Where an employee succeeds in a claim of unlawful discrimination, compensation is awarded largely on the basis of injury to feelings so the complainant would need to evidence this. "Although theoretically uncapped, awards for a single one-off incident are likely to be at the lower end of the scale," says Mrs Allner. "If the employee has also been dismissed or resigns and succeeds in a claim for constructive unfair dismissal, then again compensation for a discriminatory dismissal is uncapped and includes an element for lost earnings too." However, in an unfair dismissal claim where there is no element of discrimination, lost earnings compensation is capped at the lower of the employee's gross annual salary, or PS78,962. "In an unfair dismissal case, employees are also under a duty to mitigate their losses by seeking alternative employment," says Mrs Allner.
"No, however a policy of requiring women to wear high heels would likely amount to sex discrimination which is unlawful," says employment law solicitor Laura Allner, a senior associate at CMS. "Where a policy clearly treats women less favourably than men, for example applying strict image criteria to females but no corresponding rules for men, then this would constitute direct sex discrimination, to which there is no defence." Mrs Allner adds: "A policy of wearing high heels would almost certainly be considered 'indirectly discriminatory' provided a female complainant could show that the policy puts women - and her in particular - generally at a disadvantage.  Given the health issues associated with high heels, this argument would have merit. "It would then be open for the employer to try to defend its dress policy.  To succeed the employer would need to show that it has a legitimate business interest for implementing the policy, and that its dress code is a measured way of achieving that. "Where the defence is purely aesthetic, it would almost inevitably fail.  It is almost impossible to see how a tribunal could find a policy of requiring high heels justifiable - why not allow smart, flat shoes? "Further, if an employee suffered from a disability, the employer is under a duty to make reasonable adjustments. So if health reasons meant that wearing heels was not appropriate, the employer would need to adjust its policy."
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Is it illegal to ask a woman to wear high heels for work?
An employee can raise a grievance (either informally or formally) with his or her employer. "If having done so, the employee wishes to take the matter further, it may be possible to raise a complaint of unlawful discrimination in an employment tribunal, if they have first sought to resolve the matter through the Advisory, Conciliation and Arbitration Service, which is now mandatory," says Mrs Allner. "It would be advisable to take legal advice before doing so, to understand the legal merits of the case.  Where an employee has been dismissed, or resigns in response to a discriminatory policy, the employee may also have a claim for unfair dismissal," she adds.
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How do I complain if I feel discriminated against?
Where an employee succeeds in a claim of unlawful discrimination, compensation is awarded largely on the basis of injury to feelings so the complainant would need to evidence this. "Although theoretically uncapped, awards for a single one-off incident are likely to be at the lower end of the scale," says Mrs Allner. "If the employee has also been dismissed or resigns and succeeds in a claim for constructive unfair dismissal, then again compensation for a discriminatory dismissal is uncapped and includes an element for lost earnings too." However, in an unfair dismissal claim where there is no element of discrimination, lost earnings compensation is capped at the lower of the employee's gross annual salary, or PS78,962. "In an unfair dismissal case, employees are also under a duty to mitigate their losses by seeking alternative employment," says Mrs Allner.
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What are the penalties for companies who fall foul of the current law?