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Lawful dress codes… and work appropriate yoga leggings!

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The Government Equalities Office’s (GEO) guidance on dress codes has finally been released – but does it go far enough to guide employers down a non-discriminatory path?

In 2017 the women and equalities committee produced a report entitled “High heels and workplace dress codes”, which concluded that existing law already prohibited dress codes requiring high heels, skirts, and make up, but that the law was not well understood or enforced (our article on the same can be found here).

The GEO’s guidance “Dress codes and sex discrimination – what you need to know” was intended to address this issue. However, the guidance has been criticised for being too vague, meaning that employers relying on the guidance may unwittingly be led down a potentially discriminatory path.

The guidance states that a code requiring all staff to “dress smartly” would be lawful, provided the definition of smart was reasonable. It confirms that “Any requirement to wear make-up, skirts, have manicured nails, certain hairstyles or specific types of hosiery is likely to be unlawful.“, however then also states that this is “assuming there is no equivalent requirement for men”. Since men aren’t required to wear make-up, skirts etc. the guidance might well lead an employer to believe that the equivalent is requiring men to wear a suit. If an employer makes that assumption and continues to require female employees to dress in a gender-specific manner, then sex discrimination complaints could follow.

The guidance has also been criticised for not going far enough is in relation to religious symbols, in respect of which it urges employers to be “flexible“.

Given the lack of clear cut guidance, we anticipate that there will be further case law in this area and will keep you notified of any key developments.

Of course it may be that traditional office attire will be a thing of the past in any event, with the Financial Times recently reporting that only half of UK companies have a dress code policy and that some companies have even gone as far as allowing yoga leggings as acceptable work attire – with at least one fashion brand releasing a line of ‘work appropriate’ leggings!

Whether yoga leggings are the right fit for your company or not, it is certainly a good idea to keep your dress code policy under review.