I’m sure we can all remember the case of Miss Thorp from May 2016. She was the receptionist who was sent home from PwC’s London office for refusing to wear high heels. The case sparked massive media interest with Miss Thorp launching an online parliamentary petition which secured some 150,000 signatures. As a result of her petition two Government departments were tasked with investigating gender-based workplace dress codes. Their report, High Heels and Workplace Dress Codes, was published yesterday. In it a number of recommendations have been made including launching a public campaign to ensure employers are aware of their legal obligations, getting the government to review discrimination laws and giving employment tribunals more effective remedies which could include fining employers.

The law as it currently stands prevents employers from treating women less favourably than they treat or would treat men. In this regard, whilst employers can impose different dress code requirements for men and women, the overall standards must be the same. As such, any dress code which requires women to comply with more onerous requirements than male employees would amount to direct sex discrimination. What’s more, even if a dress code is applied equally to men and women, if it weighs more heavily on one sex than another it would amount to indirect discrimination. It is possible for employers to justify indirect discrimination if they demonstrate it is a proportionate means of achieving a legitimate aim.

In the report’s view, and I would tend to agree with this, whilst the Equality Act 2010 is clear in principle as to what amounts to discrimination its application in this area is proving much more problematic. Unfortunately, thanks in no small part to the introduction of tribunal fees, there are very few tribunal cases dealing with the issue of dress codes. As a result, I think both employees and employers are confused about what is and is not permissible with many employers opting to follow the crowd and rely on their “corporate image” to try and justify their rules. In the circumstances, before imposing fines on employers, I think the government needs to act on the report’s recommendations and undertake a review of the law to ensure it is fit for purpose.