Can an employer have a dress code requiring female employees to wear a skirt?

An employer can have a dress code that requires female employees to wear a skirt, but it should apply such a code sensitively and consider exemptions in some cases. Employers should be aware of the risk that such a policy could constitute direct sex discrimination. The position under current case law (see Smith v Safeway plc [1996] IRLR 456 CA) is that, provided that the employer applies a comparable or equivalent standard of smartness and conventionality across the sexes, the employer should not be held to have directly discriminated on the grounds of sex by enforcing different requirements for men and women, such as requiring women to wear skirts. There have been some cases where employers have been found to have discriminated against women for requiring the wearing of skirts where the employer has not had an even-handed dress code policy for both sexes. Modern standards of acceptable dress and conventionality may make it increasingly difficult for employers to apply such a rule without the risk of a successful discrimination claim.

In addition, female employees of certain faiths who have a religious requirement to cover their legs may challenge an employer that applies a "skirts only" policy to female employees. Such a requirement may be held to be indirectly discriminatory on the grounds of religion or belief. It may be difficult for an employer to justify a requirement to wear a skirt where an alternative of wearing a smart trouser suit would be regarded as reasonable.

It is also arguable that a requirement for women to wear skirts at work may contravene art.10 of the European Convention on Human Rights (the right to freedom of expression), when taken together with art.14 (the anti-discrimination right). As yet there have been no cases decided on this basis.