By Anj Handa and Sarah Tahamtani

In May 2016, the Women and Equalities Committee considered an e-petition calling on the Government to make it illegal for a company to require women to wear high heels at work. This led to the launch of the high profile ‘Heels at Work’ Inquiry.

The inquiry came on the back of a petition started by temp, Nicola Thorp, who was sent home by her agency, Portico, for turning up at PwC in London wearing flat shoes.

She questioned the decision about her footwear, stating that she’d struggle to guide visitors to meeting rooms if she had to wear heels for nine hours a day. Yet she was still sent home without pay.

As a result, Thorp started an online petition, which has since attracted over 152,000 signatures. On 25th January 2017, the Women and Equalities Committee released its report in response.

A key recommendation from the report is that Government should start an awareness campaign to help workers understand and challenge discriminatory policies. The report found that:

The relationship between the provisions of the Equality Act 2010 and workplace dress codes is not widely understood. The Government has said that it expects employers to inform themselves about their legal obligations and to comply with the law. This approach is not working.

The Government must do more to promote understanding of the law on gender discrimination in the workplace among employees and employers alike.’

The report concludes that the Equality Act 2010 is not yet fully effective in protecting workers from discrimination. and the petition will be debated in Parliament on 6th March 2017.

In this article, Workplace Diversity Specialist Anj Handa and Sarah Tahamtani, Partner at Clarion Solicitors share their views on why they believe that The Equality Act 2010 is effective in protecting employees.

Setting your standards higher than your footwear: Anj Handa

I was interviewed by Leeds radio station, Radio Aire on 25th January about the report. In the interview, I shared my thoughts on the impact of legislation, as well as my own personal experiences.

The report recommends that:

‘The Government must substantially increase the financial penalties for employers found by employment tribunals to have breached the law. Penalties should be set at such a level as to ensure that employees are not deterred from bringing claims, and to deter employers from breaching the legislation.’

One of the questions I have raised was whether dress policy ‘should’ be enforced by Government. Discriminatory dress code can be addressed under the Equality Act 2010 if it disadvantages certain groups of people. For example, the ‘protected characteristics’ cover sex, sexual orientation and people with disabilities.

I wonder whether stricter enforcement could add more pressure to an already stretched Employment Tribunals system.

As a workplace diversity specialist, I feel that the matter of dress code should be a matter of pragmatism about what is and isn’t appropriate for the needs of the business.

Companies should allow their staff to dress in a way that is appropriate to their working environment. Similarly, employees should consider what constitutes suitable work attire. Smart flats would be suitable footwear for work, flip flops would not.

I would urge organisations to consider how their HR policies may impact on staff wellbeing and employee engagement and take a common-sense approach when implementing their dress code policy.

Dress Code and the Law: Sarah Tahamtani

The Equality Act 2010 provides adequate protection for employees subjected to discrimination.

A dress code requiring women to wear an item of clothing, such as high heels, that is not expected of their male colleagues, is likely to be indirectly discriminatory under the Equality Act. It also may give rise to additional claims of harassment, where the employee claims that they have been offended or humiliated by the dress code requirements.

An employer has a possible defence if they can show that the dress code requirement is objectively justified. Whilst there have a been a recent increase in cases based on the areas of dress codes and religious discrimination in which the area of justification has been looked at, they have provided very little clarity.

In the case of Eweida & others v UK [2013], the ECHR upheld a Christian employee’s complaint that she had been asked to not wear a cross necklace as it was contrary to British Airway’s uniform policy. More recently, the Advocate General has issued contradicting judgments relating to Muslim employees who were asked to refrain from wearing a headscarf.

It is clear from these recent cases that dress code requirements which may be discriminatory are difficult for employers to justify.

The compensation that a Tribunal can award for discrimination is unlimited. As such, it is not clear what additional deterrent would be effective to prevent employers from breaching discrimination law, or what the Committee is proposing in this regard.

Dress Code Standards

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Previous sex discrimination cases for dress code requirements were looked at in the context of what was ‘conventional dress’. The EAT in the case of DWP v Thompson [2003] recognised the need for employers to be progressive and to consider applying modern day standards to dress code requirements.

The nature of concerns raised in discrimination cases tends to correlate directly with social attitudes and developments. As such, the compensatory awards made by Tribunals is likely to follow what is socially acceptable, therefore Tribunal awards are likely to increase as tolerance for discrimination decreases.

The law provides adequate protection but it relies on employees taking a stand and raising complaints on dress code requirements. There is likely to be an increase in employees bringing claims in light of the recent publicity and cases.

It is hoped that employers will continue to recognise the benefits a diverse workforce can offer to the business and that attitudes towards dress and conventions will become more progressive and open as a result.

Clarion Solicitors is a Leeds-based law firm. For Employment Law advice, contact Sarah.

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