High heels and workplace dress codes Contents

4How well does the law work in practice?

59.To work in practice, the law needs to be understood by employers and workers, and enforced if breached. The evidence we received suggests that employers in the main sectors focused on in this report (hospitality, retail, tourism, corporate services and agency work) often fail to take workers’ complaints about potentially discriminatory dress codes seriously. Further, we repeatedly heard that even where employees think that their dress code might be unlawful, they feel too insecure in their job to challenge it.

Workers’ experiences of challenging dress codes

60.We received a large number of contributions via the web forum from women sharing their experiences of trying to challenge dress codes. Overwhelmingly, their experiences were of informal attempts at challenge—for example, by speaking to their manager or having an informal conversation with a colleague in human resources—rather than formally through a letter of grievance, through ACAS, or an employment tribunal.

61.When Ms Thorp challenged Portico’s dress code, she was laughed at by her manager and sent home without pay:

She [the supervisor] just laughed and when I did point to the male colleague, she continued to laugh at me. I wasn’t taken seriously. It felt like she thought that I was just causing a fuss … That’s certainly how I was made to feel on that day—and humiliated because she laughed at me in front of other workers.86

For her part, Emma Birkett said that, when she questioned the dress code required by her employer, she was laughed at87 and met with a “quip” that she would have plenty of time to rest her feet if she were unemployed. She was only allowed to wear flat shoes to work after an ankle sprain.88 Although Ms Birkett was aware that there were organisations she could have turned to for support, she did not contact them because:

… there is always that fear that if you do that, you will be pushed out of your job. When you really need that employment, you have to weigh up how much fuss you think it is worth financially to you. Do you want to be out of a job? Do you want to go through the stress of having to fight for that?89

62.These experiences echo many of the comments from women in the web forum. One member of the public wrote:

When at some point about 2 years ago all the girls I worked with at that time tried to talk with our managers and HR about being able to wear flats we’ve been told that if we don’t want to wear heels maybe this place is not for us.90

Others wrote, “I was told that I would be fired straight away if I chose to put flats on”91 and “I was a bit shocked [by the requirement to wear high heels] but was too shy to challenge the dress code of a job I had just started.”92

63.In her written evidence, Angela Jackman explained that employees are in an extremely vulnerable position: if they challenge their employers, they are likely to be unsuccessful in recruitment or promotion.93 Scarlet Harris’ evidence was similar:

Better guidance would be useful, but I think there is also something there about enforcement and access to justice … some types of contracts do put people in incredibly vulnerable positions.94

64.It is clear that many employees do not feel able to challenge the dress codes they are required to follow, even when they suspect that they may be unlawful. We therefore recommend that the Government develop an awareness campaign to help workers to understand how they can make formal complaints and bring claims if they believe that they are subject to discriminatory treatment at work, including potentially discriminatory dress codes. Advice should be provided about:

The awareness campaign should cover all sectors but be targeted particularly at the following industries:

65.In view of the evidence we have received about the particular impacts of discriminatory dress codes on younger workers, this awareness campaign should also be extended to include all sixth form and further and higher education institutions in England.

Employers’ understanding of the law

66.Scarlet Harris and Azmat Mohammed agreed that there was poor understanding among employers about the legality of workplace dress codes.95 This seems to be borne out by what Simon Pratt, the Managing Director of Portico, had to say:

Chair: …are you saying that, before all this publicity, it did not occur to anyone, looking at these [dress code] guidelines, to say, “Look, there might be a bit of a problem here. These might be discriminatory”?

Simon Pratt: I think the reality is that it didn’t.96

67.Employers need to understand the impact of dress codes on their workers. Harini Iyengar told us that while the pain caused by prolonged wear of high heels might be obvious to women who regularly wear high heels, she thought “a lot of men have not applied their minds to it.”97 If employers simply do not understand that high heels do harm, it follows that they will be unlikely to ask themselves the crucial questions about what legal obligations they might have to address a discrimination or health and safety risk arising from their dress code.

Guidance available to employers

68.In order to help employers comply with their legal obligations, Acas (the Advisory, Conciliation and Arbitration Service) provides guidance to employers about workplace dress codes.98 Acas told us:

Rather than stating that employers should introduce a dress code, Acas encourages employers who are intending on doing so to consider whether this is genuinely needed. Acas emphasises that employers should only specify a dress code where they believe the business needs one, or will benefit from one. Likewise, outside of legal requirements (which includes Sex Discrimination provisions) or widely-acknowledged good practice, we do not seek to recommend particular positions on the specific requirements of dress codes. 99

69.The guidance Acas provides to employers was criticised by Azmat Mohammed100 and Harini Iyengar101. They told us that if an employer without in-house legal support had to respond to a complaint about a dress code and turned to the Acas website for support, Acas’ guidance would be of little assistance.102 John Bowers noted that Acas concentrates mainly on conciliation services, and has tended to leave education about employment discrimination law to the Equality and Human Rights Commission.103 In their written submission Acas expressed a readiness to develop more detailed online guidance about dress codes for employers, and to work with stakeholders to achieve this.104

The Government’s assessment of employers’ understanding

70.We asked the Government what assessment it had made of the extent to which the law in this area is understood by employers, and what steps it would take to ensure that employers are aware of their obligations when they impose or review a workplace dress code. The Government responded that it keeps the Equality Act 2010 under review: it told us that, in 2015, it had published a post-legislative scrutiny memorandum, which set out the Government’s evaluation of how well the Equality Act worked during its first five years on the statute books.105 We found this answer to our question somewhat disappointing—the document to which we were directed does not mention dress codes at all. The Government did not provide any other evidence of any work it had done to establish the extent to which employers understand the law in this area, nor did it describe any plans to ensure that employers are made aware of their obligations under the law.

71.The Government Equalities Office does not appear to have a grasp of whether employers understand and comply with anti-discrimination legislation when they are implementing dress codes. The evidence we received indicates that employers do not properly understand how the Equality Act applies in practice, particularly in areas where there is little case law to guide them.

72.It is clear to us that, in many cases, employers who impose dress codes on their workers simply are not asking themselves what legal obligations they might have to protect their employees’ health and wellbeing and to avoid discrimination against their employees, because they are not recognising the potential harm which their dress codes might cause.

73.The Government Equalities Office should work with Acas and the Health and Safety Executive to ensure that detailed guidance for employers is published, to help them to understand how discrimination law and health and safety law apply to workplace dress codes. Given the importance of this issue for millions of workers, we recommend that the Minister for Women and Equalities ensure that this updated guidance is published by July 2017.

74.At the very least, this guidance should address the more controversial dress code requirements which have been brought to light through this inquiry: high heels and footwear; make-up; manicures; hair (colour, texture, length and style); hosiery; opacity of workwear; skirt length; and low-fronted or unbuttoned tops.

Box 1: Case study: Portico’s adoption of a gender neutral dress code

The dress code which gave rise to this petition had been in place for eight or nine years. 106 Portico had not taken advice about the legality of this dress code, either on its introduction or when it last reviewed the dress code in 2014. 107 Questioned about the rationale for the strict dress code, Simon Pratt (Managing Director of Portico) explained that “the market, and the industry itself, has driven standards to date.” 108 He confirmed that Portico had not sought legal advice about the legality of their dress code because it simply had not occurred to anyone that the dress code might be discriminatory. 109

The dress code prohibited opaque tights and included a detailed make-up regime. The full dress codes for female and male workers can be found at Appendix 1. Some of the female dress code requirements were:

  • Heel height normally a minimum of 2 inches and maximum of 4 inches, unless otherwise agreed by the client company.
  • Make-up worn at all times and regularly re-applied, with a minimum of: light blusher, lipstick or tinted gloss, mascara, eye shadow, light foundation/powder. Nail varnish only from the colour palette below.

  • Tights of no more than 15/20 denier to be worn at all times on duty. Black or brown may be worn for darker skin tones and natural/tan for lighter skin tones.
  • Regularly maintained hair colour (if an individual colours her hair), with no visible roots.

    Following national media coverage of Ms Thorp’s petition, Portico revised its dress code. It now has a single, gender-neutral set of “Dress and Appearance Guidelines”. 110 This new code reminds both employee and manager that they may make reasonable adjustments to the dress code which are required by reason of disability or requested through personal choice. It also provides for adjustments to reflect religious and cultural dress. The key message of the new policy is that workers “appear clean and smart at all times” 111 On shoes, the new code says only: “shoes should be clean, polished and in good repair and should be plain black.” On make-up, it says: “Make-up, if worn, should be subtle.”

    The pre- and post-May 2016 dress codes could not be more different in tone and approach. Portico’s new dress code reflects how gender-neutral dress codes can successfully balance the need of an employer or agency to achieve a uniform and professional appearance with the rights of workers not to be discriminated against, directly or indirectly, through a dress code policy.

86 Q2

87 Q30

88 Web forum: Emma, 10 June 2016 at 22:58

89 Q33

90 Meme, 10 June 2016 at 15:08

91 Lizzy Clough, 9 June 2016 at 05:36

92 Penny, 11 June 2016 at 14:06

93 This was mirrored by Nicola Thorp’s evidence to the Committee at Q1—”she [the manager] pointed out that there would be someone else who was quite happy to take over my role.”

94 Q89

95 Q77, Q88 and Q89

96 Q60

97 Q108

98 Acas provides free and impartial information and advice to employers and employees on all aspects of workplace relations and employment law. Acas guidance is provided online and via a free telephone helpline service and is designed to drive sustained organisational effectiveness and productivity and improve the quality of working life across the economy through practical advice and expert support. Acas’ online guidance for employers about workplace dress codes can be accessed here: http://www.acas.org.uk/index.aspx?articleid=4953

99 Acas (WDC0008) para. 4

100 Q72

101 Q120

102 Q72 and Q120

103 Q120

104 Acas (WDC0008) para 6

105 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

106 Q53

107 Q55, Q56 and Q65

108 Q59, see also Q62

109 Q60

110 Appendix 1

111 Appendix 1

23 January 2017