The Government’s Equalities Office has provided new guidance entitled “Dress codes and sex discrimination – what you need to know”.
The guidance stresses that dress codes can be a perfectly legitimate part of an employee’s terms and conditions of employment and the policies for men and women do not have to be identical. The emphasis is instead on the need for dress codes for men and women to be equivalent.
To illustrate this the guidance states that it is best to avoid gender specific requirements for women where there is no equivalent for men. Examples would be requiring women to wear high heels, make-up, skirts, have manicured nails, have certain hairstyles or wear specific types of hosiery. Many of us may work in places where we are required to have a smart or professional look and the point would be this is perfectly fine provided what is considered to be smart or professional is reasonable. For example, a two-piece suit in a similar colour for both men and women with low heeled shoes for all would be a safe option provided both men and women are allowed to wear trousers in the workplace.
The guidance also sets out some helpful guidance on transgender staff whose gender identity does not match the gender they were assigned at birth. In particular it states:
“Transgendered employees should be allowed to follow the organisation’s dress code in a way which they feel matches their gender identity. If there is a staff uniform, they should be supplied with an option which suits them.”
It is also important to consider that the law of discrimination extends beyond direct and indirect discrimination and equivalence. For example, an employer may argue it is treating both men and women equivalently by requiring all staff to dress provocatively regardless of gender. While this may be aimed at avoiding direct discrimination it invites complaints from staff who may feel the workplace environment makes them vulnerable to unwanted sexual attention and harassment. Although of some help, the guidance is brief. It is important to remember that ultimately where there is a dispute which is not resolved sensibly at an early stage, the Employment Tribunal can decide whether a dress code is unlawful depending on the facts of each case.