The story of a female receptionist sent home from work for refusing to wear shoes with heels that were two to four inches high made headlines late last year. In an interview with the BBC, Nicola Thorp said that her employment agency employer had told her that “all women who work here in reception have to wear heels”.
Nicola’s response to her treatment, apart from generating plenty of adverse publicity for her employer and its client, was to start a parliamentary petition, which gained more than 150,000 signatures. The petition was considered by both the House of Commons Petitions Committee and its Women and Equalities Committee.
The Committees produced a joint report, ‘High Heels and Workplace Dress Codes’, calling on the Government to review employment law where it applies to dress codes and to ensure that it is better understood and more effective.
The Government has said that existing law in this area is clear. But is it?
The Equality Act 2010 prohibits discrimination on the grounds of certain characteristics, collectively known as the ‘protected characteristics’. These include sex, gender reassignment, sexual orientation, age, pregnancy/maternity and disability.
Requiring a woman to wear high heels could be direct sex discrimination if it means that she is treated less favourably than a man. An employment tribunal found that a waitress who was dismissed for refusing to wear a blouse that she felt was too tight and too revealing was treated less favourably on the grounds of her sex, as a male employee would not have been required to wear a uniform like that.
The high heels requirement may also be indirectly discriminatory if a woman can show that it puts women in general, and her in particular, at a disadvantage compared to men. Unlike direct discrimination, indirect discrimination can be justified if it is “a proportionate means of achieving a legitimate aim”. For example, employees may be required to tie long hair back or keep it covered for hygiene or health and safety reasons. It is, however, difficult to see how an employer could objectively justify the requirement for high heels if it is based on purely aesthetic grounds.
Other protected characteristics could also be engaged by the requirement to wear high heels. Older workers, for example, may find it more difficult to wear heels because balance quickly deteriorates from age 40. Disabled workers may also be at a particular disadvantage where a dress code requires high heels. Pregnant workers suffering from swollen feet might find wearing high heels particularly difficult and there have been a number of cases relating to dress codes and the wearing of religious symbols.
It is perhaps not surprising then that the “High Heels” report found that the law is not clear to many employers. This seems to be borne out by what the managing director of Nicola Thorp’s then employer had to say when giving evidence before the parliamentary committee:
Chair: “…are you saying that, before all this publicity, it did not occur to anyone, looking at these [dress code] guidelines, to say, “Look, there might be a bit of a problem here. These might be discriminatory?””
Managing director: “I think the reality is that it didn’t.”
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 Smith v Rees 
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