Bringing Employers to Heel.

Dress codes have been in the news several times over the last week after a woman complained that she had been sent home last December for refusing to follow an instruction to wear high heels.  Nicola Thorp says that she turned up in flat shoes for her first day as receptionist at a well-known firm of accountants in the City of London, only to be told by the firm’s out-sourced reception provider that she must either buy and wear shoes with two to four inch heels or go home without pay.

Now, I cannot personally comment on Ms Thorp’s position that it would not have been comfortable for her to wear heels all day, escorting clients to and from meeting rooms.  However, I understand that not only can wearing high heels all day be uncomfortable, but it can also damage the wearer’s feet, causing blisters, bunions and back pain amongst other medical conditions.

Various employment law risks therefore spring to mind.  The first is the one that’s been appearing in all the headlines – an instruction to wear high heels is blatant sex discrimination as no man would be required to wear a similar item of clothing.  Dress codes are fine where they require staff to conform to a certain standard of dress, be that smart business attire or smart casual attire.  There can even be differences in the rules for men and women’s clothing, provided that the rules provide for equivalent standards of dress.

However, I doubt very much whether an employer would be able to justify the wearing of high heels as a requirement in an office workplace.  And it’s no good saying (as the employer intimated in Ms Thorp’s case) that she had signed their “appearance guidelines” and so that makes it all OK.  Interestingly, the company has now revised its “appearance guidelines” in light of the recent publicity.

Another legal angle to consider is an employer’s general duty to take reasonable care of the health and safety of employees.  This includes taking reasonable steps to provide a safe workplace and a safe system of work.  In addition to this, an employer has a duty to “provide and monitor… so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by [the employees] of their contractual duties”.  I consider that, if an employee was forced to wear high heels notwithstanding the known risks to their health, the employer would be liable for any resulting foreseeable injury and the employee would be able to resign and claim constructive dismissal (also unfair dismissal if they had sufficient service).

If you do have a dress code, do review it from time to time taking into account the Acas Code of Practice.  And, of course, you should generally ensure that you allow the wearing of appropriate religious and cultural dress unless such attire creates a risk to health and safety for either themselves or others.

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