High heels have provoked controversy this month and all because an outsourcing agency sent home Nicola Thorp, following her refusal to wear a two to four inch heel in the workplace. Ms Thorp complained that her male counterparts were not expected to comply with the requirement and has since commenced a petition seeking to empower women with the choice of whether they should wear flat shoes or heels in the workplace. The petition has amassed in excess of 100,000 signatories which now means that this issue will have to be debated in parliament.
This widely reported case has caused questions to be asked over whether it is an unlawful requirement to ask female works to wear high heeled shoes in the workplace.
The Legal position
Employers have a duty under health and safety legislation to ensure that their employees/workers are wearing safe and suitable clothing and footwear in the workplace. So for example a dress code that requires a female worker to wear a four inch heel on a construction site, would clearly fall foul of an employer’s obligations to ensure the safety of their employee. Arguably insisting that a female worker wears heels in an office environment to portray a corporate image to clients is less likely to breach health and safety. However there is ample medical evidence to support that wearing high heels for any length of time especially for those employees that have pre-existing conditions can cause/ exacerbate back and joint damage.
Employers are also under a duty under the Equality Act 2010 not to discriminate against its employees on the grounds of sex, and this is very much the angle that the media have capitalised on with this story. If an employer is requiring a female worker to wear heels to promote a “sexy image” of its workers then not only is this tantamount to direct sex discrimination but arguably if it goes on to create a working environment which violates the female worker’s dignity, creates a hostile, degrading, humiliating, offensive environment then it equates to harassment.
Employers may have a Dress Code policy that sets out a standard of dress and appearance for their organisation. It is important that any policy should be non-discriminatory and should apply to men and women equally, as well as accommodating various religious requirements. It is possible for standards to differ within these rules for example a policy may state “smart business dress” for women but may state that men must wear a “smart shirt and tie””.
The ACAS guidance on Dress Codes states that:
- Employers must avoid unlawful discrimination in any dress code policy.
- Employers may have health and safety reasons for having certain standards.
- Dress codes must apply to both men and women equally, although they may have different requirements.
- Reasonable adjustments must be made for disabled people when dress codes are in place.
Whilst it is not necessarily unlawful to require female workers to wear high heels an employer will certainly risk health and safety and possible discrimination issues if they do so.
Given the above rationale it is hard to understand why it was not acceptable for Ms Thorp to continue with her duties whilst wearing a pair of smart flat shoes. It is noteworthy that the Company concerned has now amended its dress code to allow its female workers the choice to now wear flat shoes.
If you would like advice on your dress codes, then contact one of our employment experts at Nottingham on 0115 988 6211 or London on 0207 408 9427.