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FASHION LAW


By Stephen Sidkin T


he recent story about a receptionist sent home because she refused to wear high heels, has led to an online petition which, so far, has received


142,937 signatures (as at end of June). The petition urges Parliament to make it illegal for employers to impose requirements for women to wear high heels.


Is law needed? Introducing any legislation to address personal appearance in the workplace, including what height shoes should be work (leaving aside safety shoes) is difficult: increasingly what we see in the modern working environment is a balancing of employer and employee interests. In the case of codes or standards around footwear, dress and appearance this means balancing an employer’s standards and corporate image with employees’ personal choices.


The law already imposes some limitations beyond health and safety


obligations. An employer imposing a dress code policy or standards of appearance must consider the relevant legal issues, ensuring that there is no unlawful discrimination or disadvantage which focuses or creates a greater imposition on particular groups such as women, those with disabilities, racial or religious groups within the workforce. Where a dress code and such standards already operate, these should be kept under review as we are seeing an increasing number of legal challenges and cases.


Current law The existing laws and cases demonstrate that the courts are loath to intervene; where they have set out guidelines, they have done so in general terms: simply saying that an employer must be “even handed”. In fashion circles maintaining a particular standard of smartness, tailoring or wearing the employer’s fashion line (e.g. the current season’s collection) is common but the reality is you cannot impose exactly the same rules for men and women. More stringent requirements on men (short hair, must wear a tie) or on women (wear makeup, limits on jewellery, manicured nails) may been seen as insufficiently even handed and thus less favourable for one gender group.


Requiring equivalent but different standards of men and women, and the


fact this is acceptable legally is illustrated by claims (effectively a class action) brought some years ago against the Department of Work and Pensions; male employees of DWP as it was then, complained that they were required to wear ties to work when women were not. The argument was that this amounted to direct sex discrimination because it was only a requirement imposed on men. The Court took the view that it was not less favourable treatment because different but similar constraints were placed on women: in other words female employees might not have had to wear ties but there were equivalent constraints and conditions. The Court considered that adopting conventional standards of appearance for men and women was not discriminatory.


Greater care needs to be taken with other types of personal


circumstances: particularly limits or prohibitions around the wearing of jewellery and specifically religious symbols; recent dress code cases have ranged from concerns or complaints about the wearing of dreadlocks or a visible cross, to a full veil or a hijab. Some of these cases have concerned schools and school uniforms and standards but the vast majority have been about the workplace and employer’s demands. From a Muslim claimant awarded £4,000 for being refused a job in a hair salon because she wore a headscarf to refusing to allow a chauffeur to work with dreadlocks and dismissal of a female employee for refusing to wear a low cut top.


These examples demonstrate the discrimination which arises based on religion or belief as well as gender.


Disability and Health Conditions Special protection which exists for individual employees or potential recruits who have disabilities. They have to be accommodated (known in law as requiring an employer to make reasonable adjustments) so an employer must allow some flexibility to dress and appearance requirements. Consider an employer selling tailored clothing who has a job candidate with eczema, which means that wearing a tight collar and tie, aggravates their condition. The individual could seek a relaxation of the rules and it is unlikely an employer will be able to say that it is reasonable to refuse this. A similar situation could arise where an individual has a serious back condition and is required to wear high heels, which might exacerbate the condition leading not only to a disability claim but personal injury claim too.


Guiding principles


• Reflect your current designs, corporate image and maintain standards by all means but not to do so too stringently.


• Be prepared to be flexible especially where there are underlying religious beliefs, for example around modesty or health conditions, which may lead to an employee seeking variations.


Some might say that the height of a particular shoe is akin to the low cut


top case mentioned earlier. The legal challenge is that higher heels are associated only with women and thus only imposed on women therefore amounting to sex discrimination. On top of which there may be arguments around health and safety requirements and indeed health conditions, such as back injuries or back conditions, feet and ankles.


Stephen Sidkin is a partner in Fox Williams LLP and chairs its Fashion Law Group (www.fashionlaw.co.uk; www.agentlaw.co.uk).


8 • FOOTWEAR TODAY • AUGUST 2016


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