Although many women choose to wear makeup, a large percentage do not. How does that fit in with dress codes and can an employer insist that female employees wear makeup to work or would that amount to discrimination?
As we know, ‘discrimination’ is to treat a person less favourably because they possess a particular characteristic. Under the Equality Act 2010, certain characteristics (such as gender for example) are protected against Employers (and other employees) behaving unfairly towards them.
So under the Equality Act 2010, would asking female employees to wear makeup be discriminatory?
The answer is, it depends.
Courts have previously upheld dress codes that distinguish between male and female ‘grooming’ policies as lawful – for example, asking men to shave and keep their hair short and women to have their hair tied back, particularly where there is a legitimate importance on projecting a conventional corporate image. In may be deemed lawful where there is equal, albeit different, requirements placed on both genders.
However it may go beyond what is deemed reasonable when the rules become more prescriptive for one sex rather than another, thereby less favourable on that gender. There also needs to be legitimate reason to impose a dress code specific to the role of the employee as a opposed to a blanket rule across the board. For example, insisting that females wear makeup in a position that is neither client nor public facing is unlikely to be justifiable.
There are also additional reasons where it could be discriminatory to insist upon employees a prescriptive dress code. If it could aggravate a disability, or potentially cause a health and safety issue (in the case of high heeled shoes) or if it infringes upon an employee’s religion.
So when considering dress codes, our advice is that companies need to be sure – is the necessity legitimate within the context of the brand and the individual role? Is it fair to both sexes and does it place equal requirements on both? Will it adversely impact on an individual’s health, safety or wellbeing?
If all of those can be reconciled it then could be deemed justifiable to ask a female employee to wear makeup without it constituting a discriminatory breach. Whether or not companies should, remains contentious.