Tughans on employment law and difficult workplace scenarios.

For October 2017, we have asked the employment team to provide practical answers to unusual, sensitive or complex work related queries. We call this feature “how do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

This month’s problem concerns:

I am the HR manager of a chain of restaurants.  I have recently received a complaint from a member of staff who claims that she was forced, by her manager, to wear high heels as part of her uniform.  She is a waitress and there is no dress code in place in the business.  How do I handle it?

Dress codes have attracted a lot of attention in the media recently and a recent report carried out by a government committee found that the existing law is not fully effective in protecting employees from discrimination at work and that inappropriate dress codes remain widespread.  Indeed earlier this year, an online e-petition called on the government to make it unlawful for employers to require women to wear high heels at work and this gained over 150,000 signatures.

In your particular case, I would recommend that you investigate this complaint, as part of your grievance procedure and look at what the reasons are for the Manager wishing your female employee to wear high heels.  Can this be objectively justified?  If not, you run the risk of facing claims for sex discrimination in the Industrial Tribunal and/or also possible sexual harassment claims from female employees.  An employer must always ensure that any dress code applied creates equivalent status between female and male employees.

However, just because one sex is treated differently to the other then that does not equate to less favourable treatment.  The key is that a dress code must be considered as a whole.  Therefore a dress code can impose different standards of appearance for men and women, but employers need to know that requirements of the particular dress code will still need to be justified, by reference to current standards of conventional dress and the particular needs of the profession in question.

In the case of Natalie Smith –v- Simon Maxwell Rees (2012) Ms Smith was awarded £7,500 in injury to feelings after the Tribunal found that she had suffered sexual harassment after her employer required her to wear a “skimpy uniform” and when she refused to, she was dismissed.  The Tribunal found that “it is quite clear that a male employee would not have been required to wear a uniform like that.”, thus grounds for finding that less favourable treatment had occurred.

Therefore, insisting on high heels in the workplace could leave employers exposed to sex discrimination claims and possible health and safety issues around the wearing of high heels.  Quite aside from this, sending a message that women should wear high heels to look professional could also be damaging from an employee relations point of view.    You should closely examine whether it is actually necessary for the employee to wear high heels, bearing in mind the risks associated with that.

Whilst some dress code requirements may be objectively justified, for example where certain clothing has to be worn on health and safety grounds, it is unlikely that an employment Tribunal will consider that there is a real business need for the wearing of high heels, as opposed to other types of footwear, such as flat shoes.

 

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.