This week a news story broke about Nicola Thorp, a receptionist who was engaged to work for the accountancy firm Price Waterhouse Cooper on a temporary basis by Portico, an employment agency. The story focussed on what she was required to wear for work.

By way of background

Ms Thorp was advised that it was PwC’s dress code that she wear high heels at work. When Ms Thorp objected on the grounds that wearing these shoes all day would make her feet hurt and that she wanted to wear flat shoes she was told that unless she complied she would be sent home and the temporary appointment cancelled.

She didn't and it was.

Starting with the consequences

Much has been written about this and in this blog I've focussed on what I believe are the three most important points for employers to consider and offered my opinion on how to avoid a situation like this happening in your business.

The first point to consider is whether the requirement to wear high heels at work amounted to either direct or indirect sex discrimination. My view is no and yes in that order.

In order to prove direct sex discrimination Ms Thorp would have to show that she suffered a detriment as a direct result of her sex. To do this she would require a male comparator. Men do not wear high heel shoes so in the absence of such a comparator I believe a claim for direct sex discrimination would fail.

However, I believe that a claim for indirect sex discrimination would succeed. It is I think generally accepted that high heel shoes make a woman look “sexy”. If men were not required to wear clothing that made them look similarly sexy, then Ms Thorp may have a claim as it was only women who were required to dress in that way.

What's reasonable and whats not

So can an organisation have a dress code at work? Yes they can and in fact most organisations do, either formally or informally. Depending on the business sector it is reasonable to require employees to adhere to a dress code, be it cabin crew on an aircraft, or assistants in a supermarket. It promotes brand identity and highlights the individual as an employee who is there to provide assistance.

An informal dress code is subject to a greater degree of subjectivity in its interpretation.Suitable business attire is the phrase that is often used, and again subject to it being reasonably interpreted it is for the organisation to determine what is reasonable.

And let's not forget that in some sectors, the construction industry for example, wearing safety equipment, which is a dress code, is a statutory requirement.

Finally, when discussing either a formal or informal dress code, I have deliberately used the word reasonable. Any dress code has to be reasonable in its application and interpretation. It has to be viewed both from the standpoint of the person wearing it, and considered how it will be perceived by third parties, usually customers or clients.

On this latter point it’s also reasonable to determine how, in the case of uniforms, these should be worn. Who hasn’t seen somebody wearing a company uniform that looks like it was slept in the night before.

Lessons to be learnt

Back to Ms Thorp and what advice would I give employers.

If you are going to require employees to dress in a certain way at work, either formally or informally, think what’s reasonable and apply common sense. What do you want the dress code to say about your business, and how do you want it to be worn/applied. Also, think about it from the point of view of the employee who is going to have to wear it for maybe eight hours a day. Often employers fail to think about what works for their employees.

Consideration before implementation will at the very least avoid the embarrassment caused to PwC and Portico as was the case with Ms Thorp.

My view. What counts is the person in the uniform rather than the uniform itself.