The eagle-eyed amongst our followers would have seen our teaser trailer blog on dress codes, sparked by the news earlier this month of a temp receptionist who was allegedly prevented from going on assignment because she wanted to wear flat shoes instead of high heels.
In our blog, we commented that there have been a number of interesting “dress code” cases over the past 40 years, with employment tribunals in the 1970s taking a conservative line (and letting employers adopt different dress requirements for male and female staff), but by the time we get to the 2000s we see the tribunals questioning whether this approach makes sense in the modern workplace.
So where are we now, and how did we get here?
Cases on dress codes have come up every so often, and are always hotly contested, and in this area of life more than many others, perceptions can change dramatically over short periods of time.
Let’s start by going way back to 1977. Fleetwood Mac released its Rumours album, the Queen celebrated her Silver Jubilee, and Star Wars screens in British cinemas for the first time. In the same year a brave bookstore employee, Marianne Schmidt, took on her employer (Austicks Bookshops) over its allegedly discriminatory dress policy. The particular bone of contention was a rule that when working in public the bookstore’s female employees had to wear a skirt and were not allowed to wear trousers. The men, not surprisingly, were allowed to wear trousers (and conversely were not allowed to wear a skirt). Ms Schmidt thought the rule was discriminatory against the female staff, and it is easy to understand why she may have thought so. However, both the Leeds Industrial Tribunal and (on appeal) the EAT, disagreed with her. They took the view that because both the men and the women were subjected to clothing restrictions, they were both in the same position (even if the precise restrictions were different). So there was really no discrimination. In passing, the EAT also commented that it could not see how the rule amounted to less favourable treatment of the female employees, in any case.
Fast forward to the 1990s and we have a run of interesting dress code cases. In 1994, the EAT looked at nurses’ uniforms in Burrett v West Birmingham Health Authority. In this case, both male and female nurses had to wear uniforms, but only female nurses had to wear a cap. The EAT adopted the same reasoning in Schmidt v Austicks Bookshops, and said that the uniform policy was not discriminatory just because it impacted men and women slightly differently. The EAT also said that it was not convinced that it was not convinced that wearing a cap was less favourable treatment. On a further appeal, the Court of Appeal agreed with the EAT.
A year or so later, another disgruntled worker takes aim at an allegedly discriminatory dress code. In this case it was Mr Smith, who worked behind the deli counter at Safeway in 1995. Safeway’s dress code was that employees should dress in a “smart and conventional” way. On its face, the same rule applied to both the men and the women. However, as always the devil is in the detail. When it came to hair, Safeway’s specific rule was that men's hair was to be above their shirt collars whereas women were allowed to have shoulder length hair if it was tied back. Mr Smith (shockingly) had a ponytail and was dismissed for it. The Employment Tribunal thought this was not discriminatory, the EAT disagreed (and thought it was discriminatory), but the Court of Appeal overturned the EAT and agreed with the initial tribunal decision. Again, it followed the same reasoning as the EAT adopted in Schmidt v Austicks Bookshops.
However, as years go by the attitudes of both the general public and the courts are mellowing somewhat when it comes to dress at work. So in 2000, in the case of Pell v Wagstaff, an Employment Tribunal decided that a male employee was discriminated against when he was not given a job as a bartender because he had long hair. The tribunal looked at Ms Schmidt’s case but decided that the situation before it was different. It also commented that the employer’s expectation (that male employees have short hair) was 'somewhat outmoded in this day and age'.
A few years after that, in Jarman v The Link Stores Ltd (2003), another employment tribunal decided that allowing female employees to wear earrings but not allowing male employees the same privilege, amounted to sex discrimination. This would probably not be the likely outcome if a strict “Schmidt” line was followed. However, this mellowing has not been entirely consistent.
As well as giving the world Facebook, 2004 brought the case of Department for Work and Pensions v Thompson where Mr Thompson claimed that a requirement for men to wear a collar and tie at work was discriminatory. In that case, the EAT decided that the proper approach was to consider whether, applying contemporary standards of conventional dress, the level of smartness required by the employer could only be achieved for men by requiring them to wear a collar and tie. If it could be achieved by other means then the lack of flexibility for men may suggest that males were being treated less favourably than females; it would not have been necessary to restrain men’s choice of what to wear in order to achieve the standard of smartness required.
Jumping ahead to 2009, in Dansie v the Commissioner of Police for the Metropolis, a male police officer in training complained that as part of the dress policy he was required to have his long hair cut short, whereas female recruits were not. In contrast to the earlier ET decision involving the bartender, the EAT found this requirement not to be discriminatory, holding that in order to determine whether an employer treats members of one sex less favourably than the other it is necessary to consider the dress code as a whole even though a single provision of the code may upset the balance of treating the sexes equally.
So where does this leave high-heel shoes? In theory, given that previous cases have told us to look at dress codes in the round and at general conventions of dress, this may suggest that as long as the requirement is not for a four inch stiletto, this may be ok. But this thinking is likely to be a mistake.
In 2016 it would be a brave person who would now argue that women wearing heels over flats is still a dress convention. Also, arguably a requirement on women to keep the heels high could be distinguished from some of the earlier cases as physical discomfort caused by high heels is a clear differentiating factor.
In any event this latest row is rumbling on. Business secretary Sajid Javid has now waded in and in response to a well-supported petition against heels being required in a workplace has said, “No woman should be forced to wear high heels. Responsible employers shouldn’t need the law to tell them that.” So it seems like this will be left as a matter for the courts to deal with when some employee decides to kick up a fuss and take a stand (in heels or otherwise).