legal spotlight ‘Grab them by the dress code’


“They said: ‘How are you going to change the pageant?’ I said ‘I’m going to get the bathing suits to be smaller and the heels to be higher’” (President Trump after buying the Miss USA pageant in 1997) President Trump might be able to demand higher heels in his pageant, but this will not be tolerated in this country any more, writes Alistair McArthur partner – head of employment department at Herrington Carmichael


Or at least that is what comes out of the House of Commons Petitions Committee and the Women and Equalities Committee’s report ‘High heels and workplace dress codes’. An enquiry was opened following a petition initiated by Nicola Thorpe and signed nationwide by over 150,000 people.


The Committee approached the question of the legality of a dress code policy within the workplace from various different angles.


The Government has been largely criticised for its position that the current law is clear, and for so far not assessing correctly whether the Equality Act has in practice challenged discriminatory dress codes


First, the question was raised as to whether female staff are in effect subjected to less favourable treatment compared to any requirements placed on male workers. To be fair theoretically, a dress code should not be more onerous for one gender than the other, and should be enforced equally on men and women. In some circumstances, this is clearly cut. A rule, for instance, that requires female workers to wear make-up but makes no corresponding requirement (eg a smart haircut, rules about facial hair) on their male colleagues would almost certainly amount to less favourable treatment because of sex, and so could be discriminatory. On the contrary, the position on dress code may be less straightforward because men and women usually dress differently. In such cases a tribunal would be likely to apply a reasonableness test.


14 businessmag.co.uk


Secondly, the Committee also raised the issue of health and safety, which had been very much undermined in discussions about dress codes policies. The Management of Health and Safety at Work Regulations 1999 were repeatedly raised by witnesses brought in front of the Committee during its enquiry. However, the finding of the Committee is that employers do not grasp the extent of their obligations in terms of health and safety. Indeed, better information and guidance could help employers to better understand how the law applies in individual cases, particularly guidance on the extent to which dress codes should be addressed in health and safety general risk assessments. In order to help employers comply with their legal obligations. On this note, ACAS (the Advisory, Conciliation and Arbitration Service) provides guidance to employers about workplace dress codes (acas.org.uk/ index.aspx?articleid=4953).


Thirdly, enforcing existing legislation was found to be an important issue. The Committee concluded that there is not currently a sufficient deterrent to prevent employers from breaching the law. Furthermore, the potential injury to feelings compensation for successful claimants is likely to be less than the cost of the legal fees for bringing the claim. This is of course a “strong disincentive” for workers who might wish to bring a claim about a potentially discriminatory dress code.


The Government has been largely criticised for its position that the current law is clear, and for so far not assessing correctly whether the Equality Act has in practice challenged discriminatory dress codes. The Committee’s report condemns the status quo as being totally inadequate in protecting women, in particular economically vulnerable and disabled women.


As a result, the Committee has made proposals with a view to improve the practice of dress codes in the workplace and in particular, employers’ understanding of the implications of having a dress code policy in their business.


THE BUSINESS MAGAZINE – THAMES VALLEY – MARCH 2017


• Awareness campaigns should be promoted by the Government aimed at specific industries to enable employers to understand the issues related to having a dress code that is unfavourable to women;


• •


Increase financial penalties against employers who are breaching the law;


The Committee suggests the insertion of the power for employment tribunals to issue injunctions which would prevent immediately an employer from enforcing its dress code;


•


The Committee suggests that the Government should consider amending the existing legislation to clearly define what legitimate aims may be. The Committee proposes they take into account the following aims:


1 Health and safety;


2 Establish a truly necessary public image;


3 Project a smart and uniform image; and


4 Restrict dresses or insignia which may cause offence.


In conclusion, the Committee has shown that although the Equality Act is a great tool to prevent certain inequalities, it is “not yet fully effective” in protecting women against indirect discrimination resulting from an unfair dress code policy. Because most women who are affected are economically vulnerable women; their voice often remains silent.


0118 9898158 alistair.mcarthur@herrington-carmichael.com


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40