Nicola Thorp hit the headlines recently after being sent home on her first day as a temporary receptionist at PWC by her agency Portico for refusing to wear high heels. Ms Thorp has started a petition (petition. Parliament.uk) to stop employers requiring women to wear high heels at work. Much of the coverage has assumed that there is currently nothing unlawful about a dress code requiring women to wear high heels.
We suggest that this is not necessarily the case and that a requirement for a woman to wear high heels is quite likely to be viewed as sex discrimination if it fell to be considered by the courts today. Previous case law in this area is relatively speaking quite old. The general approach has been to look at the overall effect of the rules; as long as an even handed approach is adopted, the fact that members of one sex are required to wear clothing of a particular kind will not necessarily mean that they are being less favourably treated. The question is, ‘can the level of smartness required be achieved only by wearing that item of clothing?’ Men being required to have short hair or wear a shirt and tie did not amount to discrimination.
However, high heels are more controversial given the sexual connotations, which do not apply to dress codes for men. Another factor is the health risk posed by wearing heels – ACAS guidelines on dress codes remind employers to consider health and safety factors.
It is perfectly reasonable for an employer to require a professional and smart appearance from staff but this should be possible without resorting to old fashioned gender stereotypes.