The government has released some useful guidance to assist employers in getting to grips with workers’ rights and the law surrounding dress codes in the workplace. The guidance acknowledges that employers should have the power to draft and enforce a workplace dress code policy but must ensure that it is not discriminatory in nature. There is a lot of misunderstanding and confusion surrounding such policies and it can be difficult for employers to get the balance right. Can a policy require a male employee to wear a tie? A female employee a skirt? What should your stance be on manicured nails? While the guidance does not change the law in this area, it does provide some welcomed clarity (although it is not without its critics).

As you may recall, the ‘high heel scandal’ brought dress code discussions to the media forefront back in 2016 after a temp worker, Nicola Thorp was sent home on the first day of her assignment at a large London firm for wearing flat shoes. It was stated within the employment agency’s Grooming Policy that female staff were required to wear smart shoes with a heel height of between two and four inches. Nicola was advised by the agency that she could take time out of the working day to purchase a suitable pair and was sent home without pay when she refused.

As a result of her treatment, Nicola submitted a petition to government to make illegal any policy which forced women to wear high heels at work. The petition received 152,420 signatures over a six month period and gained the right to be debated in parliament on the 4th of March 2017. The government’s view is that the current legislation is clear and sufficient enough as it stands to protect employee’s rights. While pledging to take action to remove the barriers to equality for women at work, the government maintains that employers are entitled to set dress codes for their employees provided that they are reasonable.

A joint report by the Petitions and Women and Equalities Committees however has called on the government to do more – recommending a review of the area of law and a substantial increase in the penalties available to employment tribunals to award against employers for discriminatory practices. It found that discriminatory dress codes remained widespread and if necessary parliament should be asked to revise the legislation to make it more effective.

The government has stopped short of introducing new legislation in this area however, opting instead to clarify the existing law with non-statutory guidance. It advises that dress code standards can be different but must be of a similar standard. For example – it is fine to require a male member of staff to wear a tie as long as there is also a requirement for female employees to dress in ‘smart attire’. This means that there must be similar or equivalent rules laid down for both male and female members of staff and that it is best to avoid any gender specific requirements. Any requirement for example to wear high heels, hosiery, a specific hairstyle, make up or manicured nails will be unlawful, unless the same requirement is imposed on male employees (which is highly unlikely). The high heel example stands out especially here due to the associated health implications and the fact that there is no male equivalent available. Dress codes should not be a source of harassment – either by colleagues or customers, a female employee therefore cannot be required to dress in a provocative way.

Although the key focus of the guidance is on sex discrimination in the workplace it does go on advise that employers should take care and make reasonable adjustments for employees who are known to have a disability as defined under the Equality Act 2010. This could mean potentially relaxing or disapplying the policy to ensure that its impact is not more onerous on a disabled employee.

Employers should also have a flexible approach when it comes to transgender members of staff who should be allowed to dress in way they feel aligns with their gender identity. If uniforms are to be provided then employers should consult with the member of staff in order to provide the most preferable option. The same flexibility has been encouraged when it comes to religious symbols at work prohibiting the same only if they would interfere with the carrying out of work duties.

You can read the full guidance into Dress Codes and Sex Discrimination in the workplace released by the government on the 18th of May here. While many are still calling for a more robust response from government in terms of legislation and increased penalties, for the time being the legislation does not look set to change.

The key thing to remember is that all policies should be implemented fairly and consistently. A consultative approach is always advised when drafting and implementing a workplace dress code policy as it is more likely to be lawful where there is solid consideration and reasoning backing it up.