These high heels were made for waitressing, and that is what they will do!

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These high heels were made for waitressing, and that is what they will do!

These high heels were made for waitressing, and that is what they will do!

Employers could receive stricter fines and punishments if they impose sexist dress codes within the workplace, in light of a report entitled “High heels and workplace dress codes” (the “Report”) which was produced by The House of Commons Petitions Committee and Women and Equalities Committee (the “Committees”).

The Report was commissioned in June 2016 following an e-petition, which called upon the Government to make it illegal to require women to wear high heels to work. The e-petition was initiated by Nicola Thorp, after she arrived to work at Price Waterhouse Cooper to be told that the smart, flat shoes she was wearing did not comply with the dress code of the agency that employed her, Portico. Nicola Thorp started what has somewhat turned into a crusade to ban sexist dress codes, with her e-petition receiving in excess of 150,000 signatures. The Government was required to provide a response to the e-petition as it received over 10,000 signatures and therefore, the Government Equalities Commission commented that:

“Company dress codes must be reasonable and must make equivalent requirements for men and women. This is the law and employers must abide by it…employers are entitled to set dress codes for their workforce, but the law is clear that these dress codes must be reasonable. That includes any differences between the nature of rules for male and female employees, otherwise the company may be breaking the law.”

Before the Report was produced, the Committees sought input from members of the public about their experiences of workplace dress codes. The web forum used received in excess of 700 responses and heard about other kinds of sexist dress codes which require women to dye their hair blonde, wear revealing outfits and to constantly reapply make up. In 2016, Erin Sandilands (waitress) was awarded more than £3,500 after winning a discrimination claim against her employer that requested she wore a skirt and make-up to be “easy on the eye.” It may come of little surprise that a significant amount of the responses to the web forum came from women who work within the hospitality sector.

The Committee commented in the Report that no discussion has taken place in Parliament regarding gender based workplace dress codes since the Equality Act 2010 (the “EA 2010”) came into force on 1 October 2010. The legal basis of the argument for sexist dress codes falls under the EA 2010, which provides that sex is a protected characteristic and direct discrimination arises in a situation where person (a) discriminates against another, person (b), if because of the protected characteristic (a) treats (b) less favourably than (a) would treat others. The EA 2010 further provides that employer’s must not discriminate as to the terms and conditions of the employment or by subjecting an employee to a detriment at work.

The Report concluded that whilst the Government condemned the dress code imposed upon Nicola Thorp as illegal, it is common for employers to ignore their legal obligations and inflict discriminatory dress codes upon women within the workplace. The Report noted that this is not being dealt with effectively, as many of the women who are subject to discriminatory dress codes, are young women in insecure jobs who feel vulnerable in the workplace. The case of Erin Sandilands noted above is exemplary of this, as she was employed on a zero hours contact and was told she would not be offered anymore shifts. Women who are employed on such uncertain bases, are unlikely to make a complaint or bring a claim in the employment tribunal. Frances O’Grady of the Trades Union Congress supplemented this conclusion by stating that “employment tribunals cost up to £1,200 and even many women can’t afford to challenge sexist policies.” She called upon ministers to scrap tribunal fees immediately to demonstrate that they are serious about enforcing equality legislation.

The Report also referred to the physical impact that wearing high heels can have on women. Specifically, the Report referred to a campaign launched by the leading British Medical Journal, The Lancet, which in the 1880’s branded the requirement placed upon shop assistants to wear high heels as “cruelty to women.” In the Report, the Committees also made reference to evidence received from the College of Podiatry which revealed wearing high heels can reduce balance, reduce ankle flexion and create weaker muscle power in the calf muscles. With specific regard to the hospitality industry, one waitress shared a photo evidencing the physical impact wearing heels had on waitresses. The image showed her bleeding feet which were a result of working a full shift whilst wearing heels. The waitress was subject to wearing heels of at least one inch, as part of the dress code. The increase in podiatry issues associated with long term high heel wearing costs the economy £29 million in 2008 according to the College of Podiatry.

In response to the Report, the Government told the Committees that the existing law is clear and that it expects employers to inform themselves about their legal obligations and comply with the law. However, the Committee highlights that discriminatory dress codes remain rife within some sectors. The Committee commented that in light of all the evidence gathered, pushing responsibility onto employers to find out their legal obligations and comply with a strategy which is not working is not enough.

After reviewing all of the evidence obtained, the Committees have made various recommendations including the following:

  • The Government should review the area of law and ask Parliament to amend it;
  • Employment tribunals should be given more power to increase awards made against employers who breach the law;
  • Detailed guidance and awareness campaigns should be targeted at employers, worker and students; and
  • The Government should develop and awareness campaign to help workers understand how they can make a complaint and commence a claim in the employment tribunal if they feel that they are being subjected to discriminatory treatment at work, specifically in relation to dress codes. In light of the responses received via the web forum in June 2016, the Committees specifically recommended that the hospitality sector, particularly bar, waitressing and club work should be targeted.

If you would like advice on how to effectively prevent discriminatory dress codes within your organisation or how to deal with being subjected to discriminatory dress codes, please contact Sebastian Calnan, our specialist food and beverage solicitor, or the employment team on 0345 070 6000.