Should it really matter what we wear to work? Shouldn't we be judged on our professionalism and competence rather than the height of our heels or our style choices?

You may well have noticed this news story. Ms Thorp obtained a job as a receptionist, but on her first day she arrived at work in flat shoes and was sent home after refusing to go out to buy high heels.

For all that society has changed over the past century, we still live in a world in which slightly different rules are applied to men and women. Dress is one such area – all clothes shops have sections dedicated to men, and sections dedicated to women. Most men do not routinely wear skirts. Most women do not routinely wear a three-piece suit; and were they to wear a suit, it would probably be a suit designed specifically for women.

Is this right or wrong? Well it’s not my place to say. But it is accepted law that, as a general rule, enforced uniforms or dress codes at work are lawful. It is understandable that the dress code might reflect society’s norms. It is therefore also understandable that employers who do have reasonable dress codes for employees expect the dress codes to be respected, even if they distinguish between genders.

Was the employer right in this instance?

Apparently Ms Thorp phoned an employment rights helpline, and was told that employers have the right to impose a dress code at work, implying that she had no valid claim in a tribunal or court. Ms Thorp has therefore begun a petition to change our law (and says she is moving to a job where she can wear flat shoes, no makeup and wear her hair how she likes).

It is definitely correct that employers can enforce a dress code or uniform at work, but that does not necessarily mean it can have a discriminatory dress code. Employment tribunals have had to grapple with this thorny issue on numerous occasions. On the whole, they have not provided an easily applied blanket rule, but have said that if the dress code imposes a more onerous requirement on one gender than the other, that would be discriminatory.

You could argue their approach has been inconsistent. So for example, a male bartender who was asked to chop off his ponytail, successfully brought a sex discrimination claim against his employer, but a male policeman in similar circumstances was unsuccessful.

In discussing this matter in the office, we came across several anecdotes highlighting the issues. After not shaving one morning, I was once asked by a boss, “Going native, Raphael?” (And she held herself out as a paradigm liberal.) A female colleague, training as a lawyer in the mid 1990s was prevented from wearing a trouser suit to the office. One of our male colleagues was previously advised by a senior partner around that same time period to make himself look 'more west end' (whatever that means). And of course, there is the commonly told anecdotal story of a female barrister attending court in a trouser suit. As she began to address the court, the judge said, “I can’t hear you, Miss…” She spoke louder. He repeated the phrase. She almost shouted. He repeated the phrase, perhaps adding, “I can’t hear you over your trousers.” I forget the ending but it would have been an humiliating and unfair experience for anyone. (In 1995 the Lord Chancellor stated that female barristers can wear trousers.)

It's not just clothing but also accessories that have come under scrutiny in more recent years. In 2006, a Christian employee of British Airways was asked to cover up a cross that she wore as it was not in keeping with their uniform. The employment tribunal, Employment Appeal Tribunal and Court of Appeal rejected her claim, but the European Court of Human Rights decided that the UK law was unlawful. In any event, even before the initial tribunal ruling, British Airways had changed its policy.

Evidently the agency who provided the receptionist cover in the 'high-heel-gate' instance, has listened to comment. It insists that it actively embraces diversity and inclusion, and today published a statement that it has revised its policy to make it absolutely clear that flat shoes are acceptable.

Is there a general learning point for businesses? Well, engaging with employees and clients is a good start, as is revising one’s practices when change seems appropriate. Workplaces that respect the individual are in any event generally more creative and productive. Employees who are comfortable and feel individually respected are also far more likely to stay put. That does not mean that dress codes do not have their place. Of course it is reasonable and lawful to insist that employees look professional. But in order to be lawful, those rules must always be fair, proportionate and respectful.

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