Following news that a woman in the UK was sent home from work for refusing to wear heels, the topic of whether an office dress code policy is enforceable – or even necessary – is making the rounds.
When Nicola Thorp reported for a receptionist job at a London firm, she was told she was expected to wear high heels as part of the company’s office dress code policy. She refused, saying that standing in high heels for a nine-hour shift wasn’t an option for her, and she asked to wear flats instead.
Her request was denied, and she was sent home. As a result, she issued a formal complaint and stated that an office dress code policy such as that one is discriminatory, since by social convention it applies only to women.
Under Australian law, enforcing a dress code that mandates specific articles of clothing for employees based on gender opens the door for discrimination claims. Employers have the right to give direction about dress and appearance in general terms, but it must be reasonable, says Kerryn Tredwell, an employment law expert and partner at Hall & Willcox.
“Reasonable is this wonderful legal concept because basically it depends on the individual circumstances,” she says. “Businesses might want to project a certain image, and dress code is certainly a part of that. You might also have an office dress code policy in place to meet other needs, like safety requirements or hygiene standards.”
However, there are two aspects of the UK case that cause concern, she says. One is whether the requirement for Thorp to wear heels was reasonable. The second is if it is discriminatory on the grounds of sex.
In a case like this, Tredwell says that the tribunal would look for equivalent dress requirements for men and women in the workplace.
“It’s a tricky one, because men and women wear different clothing. So if there is no equivalent piece of clothing – like there is no male equivalent for high heels – the tribunal would create a hypothetical situation about what is reasonable business attire for a woman versus a man within the context of that job.”
A difference in clothing is one murky area that businesses have to navigate, but Tredwell says that organisations are more likely to see issues arise around piercings, tattoos, and haircuts or colour. As an example, she points to a recent case where a man sued his employer for discrimination on the grounds of sex because females were allowed to wear ear studs while he was not. The employee won in this instance.
That particular case illustrates the reason why more issues about office dress codes seem to be popping up lately: changing thoughts about what is and isn’t acceptable attire.
“In the case of the gentleman with the earring, the tribunal ruled in his favour because they thought that societal norms have moved to the point where that wasn’t unusual,” Tredwell says.
Members of AHRI’s LinkedIn group page weighed in as well.
One contributor wrote that “reasonableness, non-discriminatory, and workplace health and safety are the three key standards in describing the requirements for a dress code.”
Another wrote “I was in an office the other day and there were people walking around in open shoes and thongs. What happened to the old-fashioned attire?”
Whatever level of office dress code policy you impose, Tredwell says there are a few important things that workplaces should consider.
There should be a statement of expectation in regards to the style and look – whether that’s business attire or smart casual – but it needs to be as equal as possible. This should include guidelines about types of attire that aren’t acceptable at work, such as ripped clothing, open-toed shoes or sheer fabrics. Tredwell also recommends that any grooming requirements be included in the dress code, such as employees needing to come to work showered and tidy.
However, Tredwell does caution that employers will need to consider individual exceptions to an office dress code policy. For example, an employee might have a disability that prevents them from wearing certain types of restrictive fabrics or clothing. Or a religious individual might need to wear head coverings that contradict a company policy against head gear.
“Employers do need to watch out for what’s called indirect discrimination, which happens when there is a blanket policy that disadvantages particular groups,” Tredwell says. “By treating everyone the same you won’t always avoid a discrimination claim. If an employee raises a concern, the employer should exercise their discretion to agree with the employee and allow an exception. Or if they believe there are good reasons for enforcing a particular aspect of the dress code, then they need to communicate those reasons to the employee – essentially, be open to flexibility.”
Have something to say about office dress codes? You can contribute to the AHRI group discussion by clicking here.