Posted on 27th January 2017

Last May I wrote about the legality of dress codes in the workplace following the news story of Nicola Thorp who was sent home without pay for refusing to wear high heels. You can read that article here. Since that article, the Petitions Committee and the Women and Equalities Committee have looked into the issue of dictating dress codes to women in the workplace and have now published their report. As perhaps expected, the response to these investigations was substantial and reached a lot further than high heels: some people even reported being instructed to display cleavage and dye their hair blonde.

The Government has expressed its view that “the law is clear” and that the dress code that prompted the original news story is “already unlawful”. Reading that only serves to remind me that many MPs were lawyers in previous lives. Just to recap on where the law is currently: we have the Equality Act 2010, which gives protection from less favourable treatment and unfavourable treatment on the basis of gender, and we have an array of authorities which have held that any workplace dress code must be ‘reasonable’. Let’s be frank, navigating such law (even if clear to the trained eye) is far from clear to the average lay person.

So, what can someone do if they are told to wear make-up, high heels, or to display cleavage (all of which undeniably relate to a woman’s sex and are highly unlikely to be lawful instructions)? Currently, the onus is on the employee to take action and with the Employment Tribunal fees system firmly entrenched, the likelihood of many going to that effort and expense is slim. As such, many companies are unlikely to have much of a disincentive.

The report published this week has thankfully highlighted this issue and made a recommendation to make existing laws more effective at protecting employees from discrimination at work. The report calls for the Government to take urgent action to improve the effectiveness of the Equality Act. Helen Jones MP has said, “It’s not enough for the law to be clear in principle – it must also work in practice.” Hear hear!

The difficulty now comes in how the Government can improve the effectiveness of the existing law. There have been calls to name and shame companies with such practises or otherwise to fine them. There have also been calls to scrap the fees system. Sadly, consideration of such matters takes time and frankly the Government may feel there are larger fish to be frying at this moment. One can hope that some employees feel slightly more emboldened by the recent report and perhaps some companies will think twice… I guess we will have to watch this space.

Written by Caroline Jennings, barrister and member of the Employment Law group at No5 Barristers’ Chambers.

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