A story surrounding temporary employee Nicola Thorp’s experience of being sent home, by PwC, for refusing to wear high heels has taken the media by storm this week. Such a welcome on day one of a new role might not have been that unusual fifty years ago, but surely not in 2016? In this Keynote, Rachel Tozer laments the fact that, in the 21st century, workplace gender discrimination and dress code sexualisation are still rife.

Ms Thorp says that she was told by outsourcing firm Portico that she had to wear 2–4-inch heels, as part of the ‘formal dress code’. When she refused to buy the mandatory shoes, Thorp claims she was sent home without pay, and ridiculed when she complained male colleagues weren’t obliged to wear the same ‘uniform’.

Much of the commentary appears to accept that Portico is legally entitled to enforce such a dress code. This stems from the fact that while it would be sex discrimination to enforce a dress code against one gender and not the other, the courts have recognised that the social norms are such that men and women wear different clothes. So long as both genders are required to be “smart”, the general principle is that gender differences in dress codes are permissible. This approach can favour women who, for example, don’t have to sit all day long in a collar and tie and potentially a suit whatever the weather or despite the absence of air conditioning (albeit that formal dress codes for men in the office are tending to become less restrictive). However, the point here is not about the formality or smartness of the item of clothing/footwear but the sexualised nature of high heels. High heels have a clear sexual aspect to them by making the calf appear longer and slimmer and changing a woman’s posture so that her spine and hips are misaligned, resulting in her bottom being pushed outwards.

Fighting back

Ms Thorp has started a petition asking the Government to make it illegal for employers to require women to wear high heels at work. However, it’s arguable whether a change in the law is in fact required to achieve this aim. In 2012, an employment tribunal found that a female employee had been discriminated against, on the grounds of sex, when she was dismissed following her refusal to wear a tight, low-cut blouse which she considered to show too much cleavage. The woman argued that a male employee would not have been obligated to wear similar attire. One might ask Portico if it requires its male staff to wear sexually attractive footwear and, if not, why requiring Ms Thorp to wear the same is not sex discrimination?

The history of the high heel

While many women choose to wear high heels, few would claim them to be comfortable. Perhaps because they were never invented for walking! It appears that the high heel was in fact invented for men to make riding on horseback easier by fitting snugly into stirrups, thereby making the use of a Persian soldier’s bow and arrow more efficient. Today’s modern-day high heels are a far cry from the block heels worn by the male and female aristocracy in the 17th century. One trusts that the men who followed the diminutive Louis XIV of France’s example to supplement his height by 4-inch heels were not required to spend nine hours a day walking clients to meeting rooms as Ms Thorp was.

Health and safety

In addition to the risk of facing a sex discrimination claim, employers might be well advised not to follow Portico’s dress code in light of the health and safety obligations to staff. It is well documented that high heels can cause lower back pain, and a recent study by Stanford University Medical Center (US) concluded that wearing high heels (1.5-inch and 3.2-inch heels were tested) alters a woman’s gait in a way which puts her knees under additional strain. The NHS website notes that, over time, this may potentially lead to osteoarthritis (so-called wear-and-tear arthritis) where damage to a joint causes stiffness and pain.

Our firm advice

In short, our advice for businesses is to specify “smart” footwear for men and women but do not require women to wear heels. Or you could risk facing hefty claims!

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.