MPs have called for companies with sexist dress codes to be fined. But many chores do have requirements for employees’ appearances.
“No, however a policy of requiring females to wear high heels is very likely to amount to sex discrimination which is unlawful, ” says job law solicitor Laura Allner, a senior associate at CMS.
“Where a policy clearly treats women less favourably than humen, for example applying strict image criteria to females but no corresponding rules for men, then this would constitute direct sex discrimination, to which there is no defence.”
Mrs Allner adds: “A policy of wearing high heels would almost certainly be considered ‘indirectly discriminatory’ provided a female complainant could show that the policy sets girls – and her in particular – generally at a disadvantage. Given the health the problems associated with high heels, this argument would have merit.
“It would then be open for the employer to try to defend its dress policy. To succeed the employer would need to show that it has a legitimate business interest for implementing the policy, and that its dress code is a measured way of achieving that.
“Where the defence is strictly aesthetic, it would almost inevitably fail. It is almost impossible to see how a tribunal could find a policy of requiring high heels justifiable – why not permit smart-alecky, flat shoes?
“Further, if an employee suffered from a disability, the employer is under a duty to make reasonable adjustments. So if health reasons meant that wearing heels was inappropriate, the employer would need to adjust its policy.”
Employers can implement a dress code to ensure that employees are garmented in accordance with the arrangements “thats right for” its particular business, provided this would not be deemed discriminatory.
Mrs Allner says: “A key issue is whether or not the employer can justify its policy – namely, show that the dress code being implemented is proportionate for it to achieve its particular business aim.
“For example, if there are health and safety reasons necessitating employees’ hair to be kept in a particular style, then this may be justifiable. If a policy is purely implemented for stylistic reasons, then it is less likely to be justifiable.
“Previous high profile examples have considered prohibitions on wearing religion items. The case law shows that the cases are very fact specific.”
An employee can create a grievance( either informally or formally) with his or her employer.
“If having done so, the employee expressed the wish to take the issue further, it may be possible to raise a complaint of unlawful discrimination in employment opportunities tribunal, if they have first sought to resolve the matter through the Advisory, Conciliation and Arbitration Service, which is now mandatory, ” says Mrs Allner.
“It would be advisable to take legal advice before doing so, to understand the legal merits of the case. Where federal employees has been dismissed, or resign in response to a discriminatory policy, the employee may also have a claim for unjust dismissal, ” she adds.
Where federal employees succeeds in a claim of unlawful discrimination, compensation is awarded largely on the basis of injury to feelings so the complainant would need to evidence this.
“Although theoretically uncapped, awardings for a single one-off incident are likely to be at the lower end of the scale, ” says Mrs Allner.
“If the employee has also been dismissed or resigns and succeeds in a claim for constructive unjust dismissal, then again compensation for a discriminatory dismissal is uncapped and includes an element for lost earnings too.”
However, in an unjust dismissal assert where “were not receiving” element of discrimination, lost earnings compensation is capped at the lower of the employee’s gross annual salary, or 78,962.
“In an unfair dismissal suit, employees are also under a duty to mitigate their loss by attempting alternative employment, ” says Mrs Allner.
Read more: www.bbc.co.uk
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