The recent campaign conducted by Ms Thorp, a receptionist at Price Waterhouse & Cooper (PwC), concerning the compulsory wearing of high heels at work raises issues concerning dress codes at work. Ms Thorp was sent home by her supervisor for not wearing high heels which led to her seeking preliminary advice on this matter. She was told that the employers have the right to impose such requirements and as such she did not have any merit in pursuing litigation in a tribunal or a court. Upon receipt of this advice, she started a petition to change such practices in the workplace. The petition has thus far attracted 46,000 signatures, indicating the importance of getting clarity on the law. Please note that Ms Thorp was not employed directly by PwC but via an agency called Portico.
Background
Dress codes evolve with time. The current stereotype image of a lawyer dress code can be observed by the media’s portrayal of women lawyers. A case in point being Ally McBeal’s (Calista Flockhart) role as a chic city lawyer, wearing a short skirt with a sharp jacket, in high heels, having cocktails with colleagues, and generally leading a glamorous lifestyle.
Prior to the 1980s, a woman lawyer was required to have a more sombre feminine image. Wearing trousers in court would have been unheard of. When a female barrister attending court in a trouser suit began to address the court, the judge said, “I can’t hear you, Miss…” She spoke louder. He repeated the phrase. She almost shouted. He repeated the phrase, perhaps adding, “I can’t hear you over your trousers.” Since the Lord Chancellor’s Practice Direction in 1995, women are now able to present themselves in trousers in court, thus extending the policy to make for more equitable treatment.
However, the outdated and prejudiced ideas continue to arise. Recently, the Telegraph’s Louisa Peacock’s experiences, reported on 29 May 2014, of being disallowed entry into a chic London restaurant, is another case in point. She was disallowed on the grounds that she was wearing trousers and as such she did not comply with the requirements of a “smart casual” dress code. Her observations were that men wearing similar type of clothes and women in skirts and high heels were being permitted entry. She subsequently complained to the court that the practice and policy was “sexist” treatment. The complaint was taken on board by the restaurant resulting in the doorman’s termination of employment.
Policies adopted by employers
The employers have stipulated requirements to portray a brand and/or corporate image, in many forms, ranging from:
- Wearing high heels;
- Wearing makeup for front line staff to portray the brand’s image;
- Not wearing low-cut tops and over exposure of the body;
- A more subtle approach is that if an employee wears bright colours that deviate from the ‘normal’ colours, the image of a man in a navy or grey suit, then their promotion prospects could potentially be damaged as they are not perceived as being ‘serious’.
In the face of expensive litigation, and despite the Eweida case being lost by her at the Tribunal, EAT and Court of Appeal on the basis that the policy did not result in group disadvantage, British Airways reviewed its uniform policy to permit the visible wearing of the cross. The company allows religious items such as turbans, hijabs and bangles to be worn as staff cannot hide them beneath their uniforms. Ms Eweida argued that it amounted to religious discrimination.
Successive cases show that dress codes adversely affect more women than men, a gender specific group disadvantage. Sadly, such issues continue to arise as demonstrated by the female cabin crew at British Airways who succeeded in their conflict for the right to wear trousers as part of their uniform.
Portico (Supplying agent of staff), have a policy requirement, embraced by PwC, in relation to wearing high heels. Employers require their employees to sign the appearance guidelines. Simon Pratt, Portico, stated that such guidelines were “common practice within the service sector”. It is noted that Portico and PwC are currently in discussions about Portico’s policies.
Indirect discrimination
To illustrate this concept, see the case of Schmidt v Austicks Bookshops Limited (1979 ICR 85). The EAT has held that a requirement for a female employee to wear a skirt and not trousers at work was unlawful sex discrimination because the employers in that case could not demonstrate an objective justifiable business reason for insisting on that particular rule regarding dress codes. As long as there is consistency of approach to appearances for male and female employees, it may not amount to sex discrimination.
Direct discrimination
The policy of conventional dress codes can be imposed by an employer to ensure an acceptable public image as illustrated by the case of a public sector worker who challenged the employer’s policy to wear a collar and tie, Department for Work and Pensions v Thompson (EAT/0254/03). The Employment Appeal Tribunal (EAT) held that an employee required by his employer to wear a shirt and tie at work had not been discriminated against on the grounds of his sex.
On the other hand in Smith v Safeway plc (The Times Law Report 5th March, 1996), although the code operated by Safeway meant that the particular detailed rules applicable to men and women employees were different, their overall effect was broadly the same, in that both men and women’s dress codes required conventionality in appearance. As long as there is consistency of approach to appearances for male and female employees, it may not amount to sex discrimination.
Guiding principles for direct discrimination
When deciding a case of direct discrimination, tribunals must consider:
- If the treatment complained of meant that A had been treated less favourably than B.
- If so, was the less favourable treatment of A on the ground of his or her sex.
- If so, had A thereby been subjected to a detriment.
Health and safety concerns of wearing high heels
“From the point of view of the foot high heels are a disaster,” said Tony Redmond, a biomechanics expert at Leeds University. “The joints of the feet can be damaged by wearing high heels, and this can cause some forms of arthritis.” Regularly wearing heels increases the mechanical wear and tear around the knee joints, which might increase the risk of osteoarthritis. It also puts people with weak lower backs at risk of slipped vertebrae.
The College of Podiatry has warned employers not to make women wear high heels at work because they can cause bunions, back problems, ankle sprains and tight calves. It has been worked out that it takes an average of one hour, six minutes and 48 seconds for them to start hurting.
Practical advice to employers
- To adopt a common sense approach taken with consultation with the employees on any issues that may arise;
- Carry out a risk assessment of the policy;
- Explain the purposes of requiring the specific conventional appearances that apply to both male and female employees, and as such does not cause a group disadvantage;
- Any policy must be objectively justifiable and the requirement appropriate for the role;
- Apply the policies even-handedly.
RASHMI CHOPRA – Hanne & Co Employment Team
