Discrimination and Dress Codes

HR Professionals may recall the highly publicised case from 2016 of Nicola Thorp, a 27 year old receptionist working as a temp via an agency, Portico, for PricewaterhouseCoopers (PwC). Part of the Portico formal dress code was for women to wear high heels. When Nicola turned up to work in flat business shoes she was told that she must wear shoes with a heel between two and four inches. Nicola refused to go out and buy a pair and was then sent home without pay. She subsequently launched a petition to change dress code laws which attracted over 150,000 signatures. 

By passing the 100,000 mark it forced the Government to respond. In response, the Government Equalities Office said: “Company dress codes must be reasonable and must make equivalent requirements for men and women. This is the law and employers must abide by it.”.

The Government Equalities Office has now published new (and it has to be said, extremely practical and well drafted) guidance which can be accessed by the link here.

It reminds employers that dress policies for men and women do not have to be identical, but standards imposed should be equivalent. This avoids employers running the risk of discrimination claims. An excellent example used is where an employer requires female staff to wear high heels as part of a dress code but places no footwear requirements on men or merely requires them to look smart. This is likely to constitute direct discrimination on grounds of sex because there is not an equivalent standard imposed on male staff. It may also amount to indirect discrimination against employees with a disability, where heels could exacerbate any difficulties with their mobility, or for those who are visually impaired, where walking in heels can pose an extra risk of falling.

The guidance outlines that requiring any gender-specific items generally, such as make up or manicured nails, is likely to be unlawful. The guidance raises another interesting point; whilst requiring both men and women to dress provocatively might not be direct sex discrimination (the requirement being applied to everyone), it raises the risk of harassment from third parties.

Tattoos in the Workplace

Another issue which has been raised more frequently, as the weather has improved, is the question of tattoos in the workplace. Despite the rise in popularity of tattoos in recent years, many employers still consider them to be unacceptable in the workplace.

However, according to a recent YouGov survey, 30% of UK adults aged 25-39 have tattoos and considering that body art has become increasingly more of a trend over the last few years, it is likely that this percentage will rise, especially within the younger generations of employees. Having established that tattoos are now common place, can employers still insist on a policy of no tattoos?

Apart from religious markings, (more common in Buddhism and Hinduism than other religions) body art is not considered a protected characteristic under the Equality Act 2010, therefore employees are not protected from discrimination, and employers are free to base their recruitment decisions on this aspect alone.

Furthermore, in certain circumstances (as well taking into account an employees’ length of service), employers could consider visible body art as a valid reason to dismiss existing employees, especially if they are frequently dealing with customers or clients in face-to-face roles. 

Essentially, businesses are able to have rules around appearance at work but these rules should be applied consistently, based on the law where appropriate, and the needs of the business, rather than managers’ personal preferences. Having a clear policy or dress code is very important and can help transparency and management of expectations.

In some industries or professions, companies will naturally want to encourage a professional image, however, employers that adopt an unreasonably strict policy on visible tattoos and body art are at risk of losing out on a significant number of skilled workers. Often a middle line can be a policy which enables employers to insist on employees covering up tattoos in certain circumstances, for example, concealing tattoos which may be deemed to be offensive to members of the public. In general however, taking a more modern and lenient approach to visible tattoos and body art in general could potentially be beneficial for businesses, and young aspiring professionals alike.


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Author: Arwen Makin

After studying law at Cambridge University, Arwen trained at leading national law firm Mills & Reeve, qualifying into their employment team in 2002. Arwen has extensive employment law experience, having advised both employers and employees on a wide range of employment issues. Prior to joining ESP she previously worked for a number of years providing advice and representation to both trade unions and their members, and has a particular expertise in the education sector. Due to her diverse experience she is ideally placed to give advice in relation to professional conduct and regulatory matters.

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