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JOSEPH BRYAN: HIGH HEELS AND WORKPLACE DRESS CODES - IS DISCRIMINATION LAW WORKING?

By Joseph Bryan

In December 2015 Nicola Thorp, employed by reception agency Portico, turned up for her first day of work as a temporary receptionist at PwC. She was wearing smart flat shoes, but was told that Portico’s policy required women to wear heels between two and four inches high. She was given an ultimatum: go out and buy high heels or go home. Ms Thorp refused to buy a new pair. When she challenged the policy, her manager sent her home without pay.

On 9 May 2016 Ms Thorp started a petition to “make it illegal for a company to require women to wear high heels at work”, which soon gathered more than 100,000 signatures. The matter fell for consideration by the Petitions Committee and Women and Equalities Committee in the House of Commons. The report of the resulting inquiry was published on 25 January 2017.

The inquiry’s scope was not limited to high heels but encompassed other gendered dress codes, and also examined the physical and mental health consequences of employers’ gender-specific requirements for personal appearance. The position under the Equality Act 2010 and its enforcement were, however, the overriding concerns; John Bowers QC gave evidence on these issues to the inquiry on 12 July 2016.

Equality Act 2010: principles, practice and recommendations

The inquiry sought to determine whether the existing law was clear and thus reverted to first principles. Sex is a protected characteristic under the 2010 Act. Direct discrimination – whereby a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others – is a form of prohibited conduct, as is indirect discrimination – the application by A to B of a provision, criterion or practice which is discriminatory in relation to B’s sex. Employees and contract workers are protected from unlawful discrimination in the workplace by sections 39 and 41 of the 2010 Act respectively.

So far, so clear. Difficulties arise in the application of these principles to individual cases, which explains the inquiry’s finding that discriminatory dress codes remain commonplace in some sectors of the economy – not least in the tailored front-of-house services provided by firms such as Portico. John Bowers explained in his evidence:

"It does depend whether it is part of a more general code. If it is a particular conventional dress code that applies to both men and women, then it would not probably be direct discrimination, but it would almost certainly be indirect discrimination because it bears more heavily on one sex than another. The employer can then justify that. Direct discrimination cannot be justified, but indirect discrimination can, on the basis that it is reasonably necessary to achieve a legitimate aim. I must say, speaking for myself, I cannot see many circumstances in which wearing high heels would either fulfil a legitimate aim or be reasonably necessary. There are some aims that may be legitimate for a dress code. For example, projecting an image, announcing who the person is, for police or traffic wardens, or health and safety…
   
"My observations are twofold. First, it is not just what is reasonable, because in order to get into the gateway of justification you have to show that there is a legitimate aim, and that is fairly narrow. Secondly, it is not just reasonable, but what is reasonably necessary, which is quite a high standard. Those issues are left to the employment tribunal, and a tribunal sitting in Hull may reach a different view than a tribunal—I am not just taking these places at random—sitting in Plymouth, for example. They reflect the standards of the community."
   

The law, the inquiry concluded, is “obviously not working in practice” to prevent ‘dress-code discrimination’ in the workplace. The Committees considered the hypothetical example of an employer whose policy required women to wear make-up but had no corresponding provision for men (for instance, a prohibition on unkempt facial hair). How feasible would it be for a woman subject to this policy to establish “less favourable treatment”, when many women wear make-up as a matter of course? There was no clear answer as to whether this would be discriminatory in the abstract: much would depend on the facts of the individual case.

In order to remedy this disharmony between principle and practice, the report makes two recommendations:

  • The Government’s Equalities Office should research the proportion of discrimination claims in this area that have failed because the claimant was unable to establish less favourable treatment. If the number is significant, the statutory test may need to be amended.
  • Adopting John Bowers’ proposals, the Government should consider changing the law to specify the legitimate aims of a dress code policy, namely: health and safety; to establish a truly necessary public image, such as the judiciary; to project a smart and uniform image; and to restrict dresses or insignia which may cause offence.

Enforcing the law

The Committees heard evidence from the public that informal challenges to dress codes were often rebuffed by management. Employees were also reluctant to escalate their concerns – whether to Acas, the EHRC, the CAB or by bringing a claim in the employment tribunal – for fear of being overlooked for promotion or being dismissed. At the same time, there was a dearth of information available to workers and managers as to their rights and obligations. Therefore, in the Committees’ view, the Government should implement an awareness campaign on employees’ rights, targeting the particular industries identified in the report, and publish practical guidance for employers on workplace dress codes.

But the inquiry found that the problem remained that, however much advice and guidance is made available, there is little financial incentive for employers to comply – all the more so where the affected staff may be on zero-hours contracts or in other precarious employment who may not want to risk bringing a claim. Indeed, the Committees heard that the recent fall in employment litigation undermined corporate best practice by removing an effective deterrent, namely the risk of being brought to book in an employment tribunal.

Several practical solutions are suggested by the Committees on the back of the expert legal evidence they heard. In particular:

  • The law should give employment tribunals the power to grant interim injunctive relief to prevent an employer enforcing discriminatory dress codes while a claim is proceeding.
  • By analogy to the National Minimum Wage Act 1998, there should be financial penalties payable by the non-compliant employer in addition to any compensation found to be due to the employee. The law could even require a payment to be made to each and every employee subject to the discriminatory dress code: thus, the larger the employer, the greater the financial disincentive.
  • To counterbalance the drop in tribunal claims, which has a consequent impact on the development of case-law, the Government should ensure that the EHRC is sufficiently resourced to bring important test cases and appeals.

Comment

The recommendations made in the Committees’ report would, if implemented, be effective and pragmatic mechanisms to redress the imbalance between workers in insecure or vulnerable employment and their employers, who are not adequately incentivised to ensure policies comply with the equality legislation. The starting point will be a Government-led campaign to raise awareness: in fact, the Committees have requested that the Government, in tandem with Acas and the Health and Safety Executive, issue updated guidance on workplace dress codes by July 2017. Some of the changes proposed in the report would, no doubt, require legislation to put them into effect, so reform is unlikely to happen overnight. But the speed with which Ms Thorp’s petition attracted signatures indicates that such measures would at least have public support.

Parliamentary scrutiny has now highlighted the practical obstacles to the enforcement of the rights of employees subjected to discriminatory dress codes. It is, after all, a question of access to justice (which is fast becoming 2017’s hot topic in employment law with the Government’s review of tribunal fees reported to be imminent). The publicity generated by Ms Thorp’s case, along with the favourable outcome of the Commons’ inquiry, might mean that other employees, who were previously unwilling to challenge their employer, feel empowered to speak up about discrimination. That is, however, unlikely to be enough. As the Committees’ report concludes, Ms Thorp’s petition has already done a great deal to promote awareness of the law: “it now falls to the Government to continue the work that the petitioners have started”.

The report of the Petitions Committee and Women and Equalities Committee is available here.

Posted: 30.01.2017 at 16:23
Tags:  Comments  Employment Law  Equality & Discrimination
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