Law 'obviously not working in practice' to protect women against sexist dress codes

Tougher penalties and injunctions are just some of the recommendations made.

In December 2015 Nicola Thorp arrived for work as a receptionist wearing flat shoes when the dress code for PwC's building required heels. She was sent home. She was (wrongly) advised that her employer was not breaking the law and so started a petition calling for the law to be changed to make it illegal for employers to ask for high heels to be worn at work, this was signed by more than 150,000 people which meant the government had to respond.

The Petitions Committee together with the Women and Equalities Committee were tasked to carry out a joint inquiry into the issue and they focussed on retail, the hotel industry, tourism, travel and airlines, with particular attention to bar, waitressing and club work.  They also heard evidence that as well as high heels, the requirement to wear make-up and skirts above the knee was humiliating and degrading, exposed the women to unwanted sexual advances and deterred women from trying to progress. It also reinforced gender stereotypes which, in particular, might make lesbian, gay, bisexual and transgender workers feel uncomfortable.

The government’s evidence was that the law already prevents employers from imposing these dress codes (Equality Act 2010 and health and safety legislation.)

The Committee published their report on 25 January 2017 which concluded that there was no doubt that a requirement to wear high heels was a health risk in the short and long term, with this having a particular impact on those with disabilities and those over 40. They said that whether employers were aware of this or not they were ‘seriously failing in their duties towards their employees’.

The Committee concluded that in theory the government was right, that the law already prevents employers from imposing these dress codes but in practice it was more complex saying "the law is obviously not working in practice to protect employees from discriminatory practices and unsafe working conditions". In particular, the requirement under the Equality Act 2010 to show less favourable treatment was a bar to successful cases, together with the available defence of ‘pursuing a legitimate aim’.

They also highlighted the huge drop in sex discrimination claims since the introduction of fees and the reduced funding for the Equality and Human Rights Commission (EHRC) meant they intervened less frequently. Finally, the compensation awarded hardly made it worth all the trouble. ACAS was criticised for failing to provide clear guidance to employers on what is and is not acceptable.

The Committee recommended that the Government Equality Officer (‘GEO) work with the Ministry of Justice to work out what proportion of claims fail because they cannot show less favourable treatment and if it is high then consider changing the test to make it much more subjective. They also wanted to analyse where the defence of pursuing a legitimate aim has succeeded and consider legislating for what will be acceptable with the suggestions of health and safety, to establish a truly necessary public image, for example, the judiciary, to project a smart and uniform image, to restrict dresses or insignia which may cause offence.

Other recommendations were:

  • The government should develop an awareness campaign to help workers understand how to make formal complaints and bring claims if they believe they are being discriminated at work
  • The GEO should work with ACAS and the Health and Safety Executive to publish detailed guidance for employers to help them understand how discrimination law and health and safety law apply to workplace dress codes.  They have asked that the updated guidance should be published by July 2017 and should cover requirements such as high heels, make-up, manicures, hair, hosiery, ‘opacity’ of workwear (is it see through!), skirt length and low-fronted or unbuttoned tops.
  • The government must substantially increase the financial penalties for employers found by employment tribunals to have breached the law, these should be set at a level to act as a deterrent to employers, suggesting that perhaps there should be a requirement to make a payment to every worker who is subject to the discriminatory dress code.
  • The government should make it quicker and easier for concerns about dress codes to be resolved by allowing employment tribunals to issue injunctions prohibiting an employer enforcing a dress code. The injunction could be issued right at the start of proceedings, taking into account the fact that the average length of time between starting a claim and final determination is 28 weeks.
  • The government must ensure that the EHRC is able to play an increased role in providing support and funding for test cases and appeals in this area.

Comment

Sadly, the imposition of tribunal fees has so significantly impacted on sex discrimination claims that any investigation into the success of similar claims in the Tribunal is going to be very short lived. However, if the government does have the time to implement the other recommendations (given it probably has its hands full with Brexit negotiations for the next decade) then this might give us some clearer case law, off the back of which the suggested amendments to the legal tests can be made.