New guidance published to help prevent discrimination in the workplace

The Government Equalities Office has issued guidance on dress codes and sex discrimination in the workplace in response to an inquiry launched by the House of Commons Petitions Committee and the Women and Equalities Committee. Separately, Acas has published guidance aimed to prevent religious and belief discrimination in the workplace. These guidance notes should be reviewed by employers to ensure they fully understand how certain policies or practices may have an adverse and/or discriminatory impact on employees in the workplace.

Dress codes and sex discrimination

In 2015 a receptionist was allegedly sent home from work on her first day without pay for failing to comply with her employer’s dress code. The dress code required the female employees to wear shoes with heels between two and four inches. The receptionist instead chose to wear flat shoes. The story received widespread coverage which led to over 150,000 people signing a petition to “make it illegal for a company to require women to wear high heels at work”.

An inquiry was then carried out by the House of Commons Petitions Committee and the Women and Equalities Committee and the report High Heels and Workplace Dress Codes was later published on 25 January 2017. The Government Equalities Office has now published the long-awaited guidance Dress Codes and Sex Discrimination – what you need to know following the recommendations set out in the report.

The guidance note sets out advice for employers, employees and job applicants and highlights that a dress code has the potential to be discriminatory, cause unwanted harassment and/or give rise to a victimisation claim against the employer.

A dress code has the potential to be directly discriminatory, for example, if the code requires female employees to wear high heels and places no equivalent footwear requirements on the male employees this may be seen as unfavourable treatment towards women and so is likely to constitute direct discrimination on the ground of sex. A dress code also has the potential to create an environment for unwanted harassment from colleagues or customers, for example, where a woman is required to dress provocatively in the workplace.

If an employee brings their employer’s attention to any issues they have with the dress code and/or complaints that they have been discriminated against or subject to harassment, and the employer reacts badly to such a complaint, the employer may be liable for victimisation. The guidance note provides various recommendations to avoid these types of discrimination in the workplace, including the following:

• Dress code standards imposed on men and women should be equivalent.
• It is best to avoid gender specific prescriptive requirements e.g. to wear make-up.
• It may be sensible to consult with the employees and trade unions over any proposed dress code or changes to an existing code to help ensure that the code is acceptable to both the organisation and its staff.
• Employers should have regard to any health and safety obligations when setting a dress code.
• The employer may choose to not impose dress requirements on a disabled employee where the impact of the dress code is more onerous on this employee.
• Employers should be flexible and not set dress codes which prohibit religious symbols if these do not interfere with an employee’s work.
• Transgender employees should be allowed to follow an employer’s dress code based on the gender they identify with.

Religion and belief discrimination

Acas has published the guidance note Religion or belief discrimination: key points for the workplace to help prevent religion and belief discrimination at work. This note discusses various points for consideration including:

• Policies for handling requests for reasons of religion or belief
• Job duties and religion or belief
• Talking about religion or belief at work
• Unacceptable language
• Food and fasting
• Behaviours based on religious belief
• Working on a holy day of the week
• Avoiding stereotyping
• Occupational requirements
• Bereavement
• Washing and changing rooms

The note suggests that employers, HR personnel, employees and trade union representatives should ensure they have an understanding of religion and belief discrimination; how it can occur; their own personal rights and responsibilities; the relevant policies in place and what behaviours and/or actions are unacceptable in the workplace.

It is unlawful under the Equality Act 2010 to discriminate against an individual on the basis of their religion, religious belief or their philosophical belief. This may be in the form of direct or indirect discrimination, harassment or victimisation. There are three common areas where discrimination is most likely to occur, that is recruitment, taking time off work for religious reasons and dress codes. It is important for employers to review their policies and practices in these areas to ensure they are not discriminatory in any way.