3The legal framework
41.The evidence provides a picture of certain sectors—in particular, retail, hospitality, tourism, corporate services and agency work—in which dress codes are particularly likely to leave female workers in a vulnerable position, sometimes causing considerable pain and humiliation. In this chapter, we consider what the law requires and whether employers in these sectors are complying with their obligations.
The existing law
The Equality Act 2010
42.The Government told us that the Equality Act 2010 aimed firstly to harmonise discrimination law, and secondly to strengthen the law to promote equality in the UK.64 The Act is far-reaching. As far as the workplace is concerned, it prohibits discrimination on the basis of certain characteristics, collectively known as the “protected characteristics”.65 These include gender, gender reassignment, sexual orientation, age, pregnancy/maternity and disability.66 The Act also requires employers to make reasonable adjustments in the workplace where a worker has a disability which the employer knows or ought reasonably to know about.67 This is a positive and proactive duty to take steps to remove, reduce or prevent the obstacles faced by a disabled worker or job applicant.68
43.In its written evidence, the Government told us that the dress code with which Nicola Thorp was required to comply was, in its view, already illegal under the Equality Act 2010. It went on to explain:
… Section 11 of the Equality Act provides that sex is a protected characteristic and Section 13(1) defines direct discrimination as follows:
Person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
Sections 39 and 41 of the Equality Act prohibit direct discrimination against employees and contract workers respectively. They also specifically state that employers must not discriminate as to the terms of employment, or indeed by subjecting an employee to any detriment at work. Victimisation of an employee or applicant for bringing a complaint is also prohibited in these provisions.
Therefore, the question is whether female staff are subjected to less favourable treatment in terms of employment terms and conditions, compared with any requirements placed on male workers. This means that the dress code should not be more onerous for one gender than for the other—comfort and health issues may be relevant here—and should be enforced equally on men and women.
In some cases, this would be clear cut—for example a rule that required female workers to wear make-up but made no corresponding requirement (e.g. a smart haircut, rules about facial hair) on their male colleagues would almost certainly amount to less favourable treatment because of sex, so would be discriminatory. With other aspects of dress codes/uniform the position may be less straightforward because men and women usually dress differently. In such cases a tribunal would be likely to apply a reasonableness test. 69
Health and safety law
44.Workplace dress codes engage other areas of law beyond the Equality Act. Health and safety law was repeatedly raised by witnesses at the first oral evidence session. Employers are legally required to conduct a workplace health and safety risk assessment.70
45.We heard evidence that many employers simply were not thinking about the risks of high heels in their health and safety risk assessments. Azmat Mohammed of the Institute of Directors and Scarlet Harris of the TUC told us that general workplace risk assessments do not go into detail about footwear71 and, where they do, they tend to focus on personal protective clothing (for example, shoes with steel-capped toes worn on a construction site).72 It seems that it is not obvious to employers that they should routinely be assessing requirements to wear high heels—and perhaps other aspects of workplace dress codes—as a health and safety risk.
Is the law clear?
The principles contained in the Equality Act
46.The Government told us that the existing law is clear,73 and that, in its view, the dress code which gave rise to this petition is unlawful under the Equality Act 2010.74 John Bowers, a barrister at Littleton Chambers, told us:
It does depend whether it is part of a more general code. If it is a particular conventional dress code that applies to both men and women, then it would not probably be direct discrimination, but it would almost certainly be indirect discrimination because it bears more heavily on one sex than another. The employer can then justify that. Direct discrimination cannot be justified, but indirect discrimination can, on the basis that it is reasonably necessary to achieve a legitimate aim. I must say, speaking for myself, I cannot see many circumstances in which wearing high heels would either fulfil a legitimate aim or be reasonably necessary. There are some aims that may be legitimate for a dress code. For example, projecting an image, announcing who the person is, for police or traffic wardens, or health and safety … 75
He continued:
My observations are twofold. First, it is not just what is reasonable, because in order to get into the gateway of justification you have to show that there is a legitimate aim, and that is fairly narrow. Secondly, it is not just reasonable, but what is reasonably necessary, which is quite a high standard. Those issues are left to the employment tribunal, and a tribunal sitting in Hull may reach a different view than a tribunal—I am not just taking these places at random—sitting in Plymouth, for example. They reflect the standards of the community.76
47.The distinction Mr Bowers draws between the law in the abstract—which is fairly clear—and the matters left to the tribunal to decide—which may be more difficult to anticipate and may lack consistency from region to region—is also reflected in other evidence we heard. Azmat Mohammed, Scarlet Harris and Simon Pratt all understood the law in the abstract.77 They agreed, however, that more information and guidance could help employers better understand how the law applies in individual cases,78 particularly guidance on the extent to which dress codes should be addressed in health and safety general risk assessments.79
48.The Equality Act is clear in principle in setting out what constitutes discrimination in law. Nevertheless, discriminatory dress codes remain commonplace in some sectors of the economy. Moreover, we have heard evidence that many employers are not taking dress codes into account in their health and safety risk assessments. This means that the law is obviously not working in practice to protect employees from discriminatory practices and unsafe working conditions.
How the law applies in individual cases
49.In her supplementary evidence, the Minister for Women and Equalities provided the example of a dress code which requires female workers to wear make-up. The Minister viewed this as a “clear cut” case of illegality unless a “corresponding” requirement applied to men, for example, a smart haircut or rules about facial hair.80
50.We asked the witnesses for their views about dress codes requiring make-up, and they did not agree with the Minister that it was “clear cut”. Harini Iyengar told us:
There is very little case law … In terms of something like requiring somebody to wear make-up who is a conventional woman and identifies as a woman, I think it would be much more difficult for her to show that that was less favourable treatment … You would be in a grey area because conventionally many women do wear make-up.81
51.The difficulty the witnesses had in advising us whether they thought a make-up requirement would or would not be illegal under the Equality Act (they both ultimately thought a requirement to wear make-up would constitute indirect discrimination82) demonstrates the significant uncertainty which characterises the practical application of the Equality Act to individual cases.
52.Elsewhere in her evidence, the Minister for Women and Equalities explained that:
With other aspects of dress codes/uniform the position may be less straightforward because men and women usually dress differently … 83
53.Mr Bowers made some suggestions about how this uncertainty might be reduced. He proposed that Parliament could define what the legitimate aims can be (as explained above, an indirectly discriminatory dress code can only be justified insofar as it is reasonably necessary to serve a legitimate aim). This would restrict the discretion of individual tribunals to decide (a) whether the aim of the dress code requirement falls within one of the prescribed legitimate aims, and (b) whether the dress code requirement is reasonably necessary in pursuit of that legitimate aim. The legitimate aims which Mr Bowers envisaged were:
(1) health and safety;
(2) to establish a truly necessary public image, for example, the judiciary;
(3) to project a smart and uniform image; and
(4) to restrict dresses or insignia which may cause offence.84
54.We note that a central issue in addressing dress code requirements which women might find humiliating lies in proving that the dress code requirement constitutes less favourable treatment. Any worker who believes they have been discriminated against by their employer and wants to bring legal proceedings must show that the dress code amounts to less favourable treatment, because that is part of the statutory definition of direct discrimination.85
55.Although the Equality Act is clear in principle, we heard a range of evidence which suggests that its application to individual cases is not straightforward. There seems to be considerable uncertainty about whether specific provisions—such as requiring female employees to wear make-up—are permissible or not.
56.In particular, the need to prove that a particular requirement constitutes “less favourable” treatment seems to be a barrier to claims in cases where the dress code requires workers to dress in a way which many people in society already adopt by choice. Make-up is perhaps the clearest example of this. We heard that it would be difficult for a claimant to prove that a dress code requiring female employees to wear make-up constitutes less favourable treatment, even though some workers might feel humiliated and degraded by the requirements of such a code.
57.The Government Equalities Office should work with the Ministry of Justice to examine what proportion of cases relating to discrimination in the workplace failed because the claimant could not establish less favourable treatment. They should also seek to discover how many people are deterred from bringing a case because they feel that the law is unclear. If this represents a significant proportion of cases, then the Government should consider adapting the less favourable treatment test to place greater weight on the subjective element—the claimant’s feeling of being discriminated against—and issuing guidance to this effect.
58.The Government should also examine what proportion of such cases failed because the employer was found to be pursuing a legitimate aim. If this represents a significant proportion of cases, then the Government should consider changing the law to define what legitimate aims can be. We would propose the following legitimate aims:
(2) to establish a truly necessary public image, for example, the judiciary;
(3) to project a smart and uniform image; and
(4) to restrict dresses or insignia which may cause offence.
64 Department for Education, Memorandum to the Women and Equalities Select Committee on the Post-Legislative Assessment of the Equality Act 2010, Cm 9101, July 2015, para 1.1
65 Equality Act 2010, section 4
66 Equality Act 2010, Part 2
67 Equality Act 2010, sections 39 and 20
68 Equality and Human Rights Commission: https://www.equalityhumanrights.com/en/multipage-guide/employing-people-workplace-adjustments
70 The Management of Health and Safety at Work Regulations 1999 require an employer to (1) conduct a suitable and sufficient assessment of the risk to the health and safety of persons at work and of those not in his employment; and (2) to set out a hierarchy of risks in the workplace. This risk assessment duty builds on the general duty on employers under section 2 of the Health and Safety at Work Act 1974 to provide a safe working environment
71 Q80
72 Q77
73 Government response to the petition, para 2
74 Written evidence from the Minister for Women and Equalities, page 1
75 Q98
76 Q104
77 Q75. See also Q76, Q87 and Q88
78 Q80, Q86-Q89
79 Q77
81 Q102. John Bowers concurred at Q104.
82 Q107
84 Q112
85 Section 13(1) Equality Act 2010. A similar criterion of “particular disadvantage” applies to indirect discrimination under section 19(2) Equality Act 2010
23 January 2017