Heels and Dress Codes: temp worker seeks to stamp down on sex discrimination

This week has seen the widely reported story of Nicola Thorp, a temporary receptionist, who was sent home without pay for refusing to wear heels at work.  Ms Thorp started an e-petition seeking to give women the choice whether to wear flats or heels at work and, to date, has in excess of 100,000 signatories, triggering the possibility of a Parliamentary debate on the issue.  The company concerned has now amended its policy to allow female workers to wear flats.  So, in light of this, what is the law regarding high heels at work?

Firstly, under health and safety legislation, employers must ensure employees wear safe and suitable clothing and footwear at work.  A policy requiring women to wear heels in clearly inappropriate settings, such as a factory or construction site, would potentially breach this, as well as the employers’ common law and contractual duties to ensure their employees’ safety in the workplace.  Whilst the wearing of heels in more suitable environments, such as an office, is less likely to breach health and safety, medical evidence suggests that the prolonged wearing of heels risks long-term joint damage and osteoarthritis, so employers would need to consider limiting the time at work employees are required to wear heels.  Also, employees with pre-existing health conditions or disabilities which would be exacerbated by wearing heels would need to be excluded from the heels-only rule.

Ms Thorp’s petition also highlights an argument that obligatory heels amounts to direct sex discrimination.  Direct sex discrimination occurs when one employee is treated less favourably than another because of sex.  There will be no discrimination solely because men are not required to wear heels.  What is key is whether a woman is treated less favourably.  To ensure equality men and women must be subjected to an equivalent level of smartness in the clothes they must wear. The issue in the present case,  assuming male comparators must also wear smart business shoes, is whether compulsory heels would subject women to an equivalent level of smartness so that they are treated no less favourably.  This will ultimately be determined on whether flats can achieve the same level of smartness and whether a heels-only rule subjects women to a materially more onerous dress code than men.  Given the health and safety risks of prolonged heel wearing, a tribunal may well conclude that a heels only policy amounts to less favourable treatment.

A further issue is the reason for requiring heels.  If the employer’s objective of heels is to overtly sexualise female employees, not only will this amount to sex discrimination but also harassment by creating a working environment which violates the female’s dignity, or creates a hostile, degrading, humiliating or offensive environment for that employee.  Tribunals have found that deliberately tight fitting and low cut uniforms can amount to unlawful harassment.

Dress codes are undoubtedly a potential minefield, not only due to sex discrimination, but also due to risks of religious discrimination as seen in many high profile appeal court decisions.  Give our employment law experts a call who will be more than happy to help you frame a policy which minimises these risks.