Headlines on dress codes are becoming more frequent and certainly catch the eye with the BBC's "Can an employer demand that you go to work naked?" being no exception! The question raises a fair point – to what extent can employers dictate what its workforce wear to work?
Earlier this year, Parliament issued a joint report, prepared by the Petitions Committee and the Women and Equalities Committee, titled "High heels and workplace dress codes". Following the Government's response in April, we were expecting detailed guidance from the government in July. This guidance has not yet been published but is expected to cover the more "controversial" requirements including high heels, make-up, manicures, hair, hosiery, opacity of workwear, skirt length and low-fronted or unbuttoned tops.
Until further guidance is published, employers will need to bear in mind recent case law and the heightened risk of having a dress code challenged on not only grounds of sex discrimination but also on grounds of the other protected characteristics in the Equality Act. Religion or belief is one where employers should be particularly cautious, with recent case law considering the wearing of religious symbols and headscarves. Findings from these cases included that a policy can be justified on grounds of health and safety but portraying a consistent image for the business or meeting a customer's requests do not provide justification of dress code requirements.
We don't know yet what the scale of the financial penalties (if any) will be for employers, but until any further guidance is issued, we recommend erring on the side of caution and reviewing dress code policies in detail to ensure they cannot be said to be discriminatory or oppressive in any way. Employers are encouraged to consult with their employees and be flexible where possible.
In short, an employer cannot dictate what an employee wears to work. They can, however, put in place a balanced policy, which applies equally to men and women and which does not subject a particular group to a particular disadvantage. Employers should note that dress codes can be different for individual employees, depending on their circumstances, and that this may be necessary where strict policies are in place.
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