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Ask About … Retail Fashion & Hospitality

11 May 2017

Many of our clients in the retail, fashion and hospitality sector face similar HR issues. Each month one of the members of our team will identify an issue, ask how you would deal with it and provide our advice. This month we asked Emma...

I am an HR Manager for a small hotel chain. We have recently refurbished our biggest hotel so that we can promote it as a “boutique” establishment with a Gin and Cocktail Bar. We’ve invested a lot of money on the décor – which looks amazing! The bar staff and servers wear funky new uniforms which are designed to complement the style of the bar. One of our girls has refused to wear the high heels which are part of the female uniform. She doesn’t seem to have a good reason for not wearing them. She just said that she never wears high heels. Another of the girls is now saying that the heels are a health and safety risk. Our owner isn’t impressed (probably because he and his wife came up with the uniform) and has told me we should dismiss her if she still refuses to wear the heels. She has less than two years’ service so I think the risks are minimal although I do feel uncomfortable about it. Also, an HR colleague who works for a local restaurant company told me that the government has recently introduced new legislation which means that you can’t make women wear high heels at work. Is that right? And what are the risks if we do dismiss her?

A. Things get complicated when you start telling people what they can wear at work, particularly if the uniform is different for men and women. There will be considerable risks if you dismiss this employee. It’s best to avoid any dress code or uniform requirement at all!

B. There isn’t any new legislation but the government plans to introduce more detailed guidance for employers on dress codes. There could be a risk of a sex discrimination claim if you dismiss this employee because she won’t wear high heels.

C. Yes, the Government rushed through the proposed legislation so it could be introduced before the General Election. It is now effectively against the law to require women to wear make-up or high heels. It will be unlawful discrimination if you sack this employee.

D. There isn’t any new legislation but the Government plans to introduce more detailed guidance for employers on dress codes. Regarding this employee, it sounds as though you can justify the requirement to wear high heels in the type of boutique bar you have described. And as the employee has less than two years’ service, as you say, it’s low risk!

The correct answer is B.

The issue of dress codes at work have received a lot of press attention recently, triggered by a receptionist who was sent home without pay for wearing flat shoes. She started a petition calling for a law making it illegal to require women to wear high heels at work. Two House of Commons committees conducted an inquiry and subsequently published a report in January this year on “High heels and workplace dress codes”.

The report concluded that being required to wear high heels at work is damaging to women’s health and well-being and that certain other dress code requirements make some female workers feel uncomfortable and sexualised by their employer. The report went on to make the following recommendations:

  • the government should review this area of law;
  • there should be more effective remedies against employers who breach the law (including the use of injunctions by employment tribunals to stop potentially discriminatory dress codes);
  • and detailed guidance and awareness campaigns targeted at employers and workers should be developed (including updated guidance from ACAS).

The government published its response to the report in April 2017. Although it rejected any recommendations which would require legislative change on the basis that, in its view, the current anti-discrimination legislation adequately protects women in these situations, it does intend to publish more detailed guidance on the issue (to be produced by ACAS and the Health and Safety Executive). This is expected in summer 2017.

Under the Equality Act 2010, a woman may be able to claim direct sex discrimination if an employer’s dress code treats her less favourably than a male comparator. An employee may also be able to claim indirect discrimination if part of a dress code which is applied to all employees puts people with a certain protected characteristic (and the employee in question) at a particular disadvantage compared to others. In this case, the discrimination will only be unlawful if the employer is not able to justify objectively the specific provision in the dress code (i.e. that it is a proportionate means of achieving a legitimate aim).

To go back to the question, it is not unlawful in itself to require employees to wear a uniform and to have different requirements for male and female employees, provided the policy is enforced for both sexes equally. In some circumstances, it may be possible to dismiss an employee for failing to comply with a dress code.

There hasn’t yet been a test case on high heels, which are arguably more controversial than other common aspects of dress codes (such as hair length or wearing ties), given the reported health issues associated by wearing them and the degree of sexualisation associated with them in the media. For these reasons, it could be argued that men and women are not being treated equally under such a dress code and so could amount to direct sex discrimination. Another possible route for challenging dress codes is by way of an indirect discrimination claim. Employers should always consider whether certain elements of dress codes can be justified (e.g. different requirements for men and women or a requirement which may disadvantage employees with other protected characteristics). Any health and safety risk should also be considered because of an employer’s duty of care to provide a safe place of work.

So, regarding the employee who won’t wear the heels at work, the fact that she has less than two years’ service (and can’t claim unfair dismissal) is not really relevant. If you dismiss her you may face a sex discrimination claim. It would be sensible to try to reach a compromise with her about the heels and consider a more relaxed policy regarding footwear.

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