Posted on 12th May 2016

Dress codes at work. Where does one draw the line? People may have read with interest about the 27-year-old woman who turned up to work as a corporate receptionist only for her manager to tell her to leave work to go and buy a pair of heels (specifically with a heel between 2 and 4 inches). She was told that she was required to wear such heels as part of the dress code. She had (allegedly) signed acknowledging and accepting the appearance guidelines which one imagines would have had stated such a requirement. This young female refused and said that she could not work on her feet escorting clients to meetings for a 9 hour shift in heels. She asked if male employees would be expected to do the same to which she received a laugh in response and was told to go home without pay. Therein lies the issue: different treatment of the sexes so obvious it is laughable.

So what is lawful when it comes to dress codes in the workplace? First, the dress code must be ‘reasonable’ (the employment barrister’s most loved word) and second, it is perfectly lawful for there to be different requirements for men and women so long as any such dress code demands an ‘equivalent level of smartness’.

Is it then arguable that women in heels (as opposed to flats) is equivalent in smartness to men in flats? In my view, it is not. I would think it difficult to defend a case of sex discrimination on that basis. Not only are flat shoes just as ‘smart’ as heeled shoes, there is no getting away from the fact that high heels are linked to a woman’s sexuality and it is unlikely that being sexy at work is a legitimate job requirement. So can it otherwise be said to be a reasonable requirement? Potentially, but it is highly subjective. One example I can think of where there would be a real justification for any such dress code would be if one’s job involved selling high heels. In those circumstances I would think it could legitimately be said to be a reasonable requirement.

Both employers and employees should be aware that if one has such a dress code in place there are additional lawful considerations to bear in mind. Wearing high heels carries risk, not only due to the increased likelihood of a fall, but also to the potential development of joint and back problems. I would say to any employer with such a dress code that a risk assessment would be important protection against any potential employer’s liability claim.

Although many may view this news item as a storm in a teacup, it is anything but. Such a story is only a drop in the ocean of casually accepted and allegedly harmless sexism that still exists in the workplace today. I should note that the policy at the root of this story has now been altered and there is no longer a requirement for female employees to wear heels.

Fundamentally, employers should be careful to ensure that ‘smartness’ of a female employee does not rely on things that allegedly enhance her attractiveness. I understand that there are some policies requiring the application of make up… but perhaps that is an argument for another day.

This article was written by No5 Chambers Employment Law Barrister Caroline Jennings.

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