High heels and the law: discriminatory dress codes

High heels have taken a huge stride from the fashion supplements to the headlines in the last few weeks. A petition started by Nicola Thorp, a…

High heels have taken a huge stride from the fashion supplements to the headlines in the last few weeks. A petition started by Nicola Thorp, a temporary receptionist sent home for refusing to comply with her employer’s dress code, demands that the Government ‘make it illegal’ for employers to require women to wear heels. However, the law is probably already on her side.

Of course, appearance matters and the standard of dress of customer-facing employees impacts on Brand. For this reason it is reasonable to require staff to wear a uniform or adhere to a prescribed dress code. Failure to comply with a reasonable and properly communicated dress code is a potential disciplinary issue.

However, employers must be mindful of equality concerns when setting standards of dress. It is permissible to have different rules for men and women. A requirement that employees of one gender are required to wear clothing of a particular kind, while others are not, will not necessarily be unlawful. Over ten years ago the Employment Appeal Tribunal ruled that a male employee required to wear a collar and tie (while women were given broader choice) had not been discriminated against because women were required to ‘dress appropriately and to a similar standard’.

The key principle is that dress-code rules should not be more stringent for one gender than the other. It is accepted that high heels cause pain and potential long term physical damage. The same cannot be said of a tie! Forcing women to wear heels is arguably ‘less favourable treatment’ on the grounds of sex and therefore ‘direct’ sex discrimination under the Equality Act 2010.

Alternatively, such a dress code may discriminate indirectly by placing women at a ‘particular disadvantage’ to their male colleagues. Indirect discrimination can be potentially justified by an employer if it is a ‘proportionate means of achieving a legitimate aim’. This defence is unlikely to stand up in a case like this as it is obviously possible for women to achieve the ‘legitimate aim’ of looking smart and professional by wearing flat shoes. Indeed, most schools require girls to wear smart black shoes but expressly prohibit heels – because they can present a health and safety risk and carry sexual overtones that are considered inappropriate.

Requiring female staff to wear heels may also discriminate on the grounds of disability. The job specification in this case required the receptionist to escort clients around the building. A woman suffering from, for example, musculoskeletal issues or arthritis, who could otherwise competently and professionally fulfil this aspect of the role, might find it impossible to do so in heels.

Nicola Thorp’s employer commented that their ‘appearance guidelines’ reflected ‘common practice in the service sector’. But such standards, however prevalent, are arguably tainted by sex discrimination. In addition to the high heels requirement, she was presented with a chart of acceptable lipstick shades, making clear that she was expected to be ‘made-up’ and aesthetically pleasing. The dress-code in this case arguably required female staff to be not only ‘smart’ but ‘sexy’ – a bigger ‘trip hazard’ for an employer than any pair of stilettos.

Stuart Jones (stuart.jones@weightmans.com) is our Head of Employment, Pensions and Immigration and is based in Liverpool.

A version of this article was first published in The Times on 19 May 2015. View the original article.

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