The Government has published its response to the House of Commons Petitions Committee and Women and Equalities Committee joint report on dress codes in the workplace. The Government has rejected recommendations for legislative change on the basis that scope for redress for women subjected to discriminatory dress codes already exists, in favour of an approach based on more detailed guidance and awareness campaigns.
Background
In December 2015, Nicola Thorp was sent by her employment agency, Portico, to work at a client's offices as a temporary receptionist. When she arrived at work, she was told that the smart, flat shoes she was wearing did not comply with Portico's dress code, which included a specific requirement to wear shoes with a heel height of between 2 and 4 inches. Ms Thorp was then given the option to go out to buy a pair of high heels. When she refused, she was sent home without pay.
As a result of her experience, Ms Thorp started a petition titled "Make it illegal for a company to require women to wear high heels at work" (the Petition). The Petition opened on 9 May 2016 and closed on 9 November 2016, with 152,420 signatures.
In response to the Petition, the House of Commons Petitions Committee and the Women and Equalities Committee (together the Committees) carried out a joint inquiry, focusing on hospitality, retail, hotels and tourism, travel and airlines, corporate services and agency work. This included, from 8th to 15th June 2016, a web forum in which members of the public were invited to share their experiences of workplace dress codes. 730 responses were received in just one week, and included evidence from women complaining of being forced to dye their hair blonde, wear revealing outfits and constantly reapply make-up.
The Committees' report was published on 25 January 2017 (the Report).
Report
The Report concluded that being required to wear high heels is damaging to female workers' health and wellbeing, and that some other dress code requirements make some female workers feel uncomfortable and sexualised by their employer. The Report made nine recommendations (outlined in more detail in the Response section below), in the following three key areas:
- The Government should take urgent action to improve the effectiveness of the Equality Act by reviewing this area of the law and, if necessary, asking Parliament to amend it.
- More effective remedies should be available against employers who breach the law, such as enabling injunctive relief against potentially discriminatory dress codes and allowing employment tribunals to award increased financial penalties against employers who breach the law, in order to provide an effective deterrent; and
- The Government should introduce guidance and awareness campaigns targeted at employers, workers and students, to improve understanding of the law and workers' rights.
On 6 March 2017, the House of Commons discussed the Petition. During the debate, it was stated that the government were looking at ways to take strong action to tackle sex discrimination at work.
On 20 April 2017, the Government published its response to the recommendations set out in the Report (the Response).
Response
In the Response, the Government said that it takes this issue very seriously and will continue to work hard to ensure women are not held back in the workplace by outdated attitudes and practices. However, they rejected recommendations for legislative change on the basis that scope for redress for women subjected to discriminatory dress codes already exists in the Equality Act 2010.
In the Government's view, the law is already designed to protect the rights of women in the workplace, although they accepted that awareness of the law among employers and employees is patchy and that there are bad employers who knowingly flout the law. Therefore, the Government accepted that it can do more to raise awareness and knowledge of employee's rights and employers' responsibilities.
More generally, the Government reiterated their commitment to enhancing the role of women and removing barriers to equality, including outdated attitudes and practices, by tackling the gender pay gap, increasing the number of women on boards, increasing support for childcare costs and ensuring that employers are aware of their obligations to pregnant women.
Specific comments in relation to the key recommendations are set out below:
Recommendation 1: Examine what proportion of cases relating to discrimination in the workplace failed because the claimant could not establish less favourable treatment and seek to discover how many people are deterred from bringing a case because they feel that the law is unclear. Consider adapting the less favourable treatment test to take greater account of the subjective element (i.e. the claimant's feeling of being discriminated against) and issue guidance to this effect.
Reply: This data is too specific a requirement to obtain from available tribunal data. The Government will consider whether further, bespoke, research can be undertaken on this issue, while being aware of the cost and potential value of this work. In any event, the Government intends to produce new guidance this summer on dress codes in the workplace with the intention of making the law clearer to employers and employees.
Recommendation 2: Examine what proportion of such cases failed because the employer was found to be pursuing a legitimate aim. Consider changing the law to define what legitimate aims can be (e.g. health and safety, to establish a truly necessary public image (e.g. the judiciary), to project a smart and uniform image and to restrict dresses or insignia which may cause offence).
Reply: The legitimate aims suggested in this recommendation seem reasonable, however, the Government does not favour a prescriptive approach to defining a legitimate aim in the legislation. In part, because this would undermine the principle that courts and tribunals should be free to consider the particular circumstances of each case brought before them and any defence that is offered.
Recommendation 3: Develop an awareness campaign to help workers to understand how they can make formal complaints and bring claims if they believe that they are subject to discriminatory treatment at work, including potentially discriminatory dress codes.
Reply: The Government welcomed this recommendation and confirmed that the Government Equalities Office (GEO) will be producing guidance on dress codes in the workplace as a specific response to the Petition and the issues it raises. The GEO will work closely with Acas, the Equality and Human Rights Commission (EHRC) and the Health and Safety Executive (HSE) to explore options for raising further awareness of this issue.
Recommendation 4: The awareness campaign should be extended to include all sixth form and further and higher education institutions in England.
Reply: The Government agreed that it was important to prepare and equip students for the world of work, and helping them to understand their rights. As Higher Education Institutions, sixth form and further education colleges are autonomous institutions (i.e. the Government does not set their curriculum), they will consider a variety of routes to reach a student audience.
Recommendation 5: The GEO should work with Acas and the HSE to ensure that detailed guidance for employers is published, to help them to understand how discrimination law and health and safety law apply to workplace dress codes. This should be published by July 2017.
Reply: The Government welcomed the opportunity to develop new guidance for employers and confirmed that it is working closely with Acas, the EHRC and the HSE to produce this guidance, with the aim of publishing it in summer 2017.
Recommendation 6: In the guidance, address some of the more controversial dress code requirements which have been brought to light through this inquiry: high heels and footwear; make-up; manicures; hair (colour, texture, length and style); hosiery; opacity of work wear; skirt length; and low-fronted or unbuttoned tops.
Reply: These aspects of dress code requirements will be considered in developing the guidance.
Recommendation 7: Increase the financial penalties for employers found by employment tribunals to have breached the law.
Reply: The Government noted that employment tribunals operate on the principle of restorative justice. This means that their remedies are not intended to be punitive, but, instead, primarily about compensation for detriment or unfair treatment. The Government concluded that it is satisfied the current power of employment tribunals to award compensation for 'injury to feelings' (in accordance with the Vento guidelines and relevant case law) as well as financial losses are proportionate and fit for purpose.
Recommendation 8: Make it quicker and easier for the claimant to resolve a legal problem with their dress code by allowing employment tribunals to award injunctions in these types of cases.
Reply: As a serious judicial sanction which can only be imposed by the High Court and above, the Government concluded that the use of injunctions by employment tribunals in disputes between employers and their employees over the latter’s appearance would be disproportionate.
Recommendation 9: Ensure that the Equality and Human Rights Commission is able to play an increased role in providing support and funding for anti-discrimination test cases and appeals before employment tribunals and courts. The Women and Equalities Committee will want to maintain a watching brief in this area as part of its ongoing scrutiny of the work of the EHRC.
Response: The Government welcomed the continued interest of the Women and Equalities Select Committee in this issue, but noted the EHRC itself is an independent body which makes its own decisions on legal interventions (although it is currently considering its approach in this area more generally). The Government commented that many employers may be reluctant to test this sort of issue at an employment tribunal and a persuasive enforcement approach may therefore be fully appropriate.
Comment
New comprehensive guidance on dress codes is expected to be published later in the year. However, Nicola Thorp, who initiated the Petition, described the Response as "a bit of a cop out" and has said that it is shame that the Government has declined to review this area of the law. In coming to their decision, the Government concluded that they were satisfied with the current protection in the Equality Act 2010, specifically that:
- it is already unlawful for an employer to discriminate or harass a person because of or for reasons related to sex in employment;
- direct sex discrimination is prohibited (and, in particular, it is clear that a dress code that makes significantly more demands of female employees than of their male colleagues will be unlawful under this provision); and
- it is already unlawful to victimise a person for making a complaint about such conduct.
However, some commentators have noted that, in reality, there is a lack of case law on whether (and when), a dress code might constitute sex discrimination. Arguably, this uncertainty, together with a lack of cases where discriminatory dress codes have been challenged, still leaves the law unclear.
Maria Miller, Chair of the Women and Equalities Committee, welcomed the commitments made by the Government to increasing awareness of employees rights under equality legislation and said that she hoped that the next government would monitor how this changes women's experiences of the workplace.
