With the TUC about to debate whether women in the workplace feel pressurised into wearing high heels, and if this amounts to sex discrimination or harassment, Nicola McMahon looks at where employers stand in regards to the law.
My staff uniform includes heels. Is this OK?
Uniform policies and dress codes have long been the subject of discussion and litigation. It will be interesting to hear the outcome of the related TUC debate at its annual conference next month. In particular, its views on whether the TUC believes women in the workplace feel pressurised into wearing high heels and whether they are of the opinion that this amounts to sex discrimination and/or harassment.
Risks in these areas are often more apparent when a uniform policy requires staff to wear clothing or accessories which could be deemed inappropriate on grounds of their sex, race (which includes race, colour, ethnic or national origin), religion or belief, or even their age or a disability.
A Muslim cocktail waitress was recently awarded £3,000 compensation by an employment tribunal on grounds that forcing her to wear a uniform which consisted of a short red dress amounted to sexual harassment. Her claim for religious discrimination failed, but in other circumstances there is a strong risk that such claims could be successful.
In addition to discrimination issues, health and safety is a very important consideration. The Health and Safety at Work Act 1974 imposes an obligation on employers to safeguard the health and safety of their employees, so far as reasonably practicable, and all employers are required to carry out a comprehensive risk assessment of their workplace and address issues which are identified. The Society of Podiatrists and Chiropodists, which tabled the motion for the TUC debate, has cited back and lower limb problems as the cause of two million days a year absence from work in the UK, some of which, it claims, is attributable to the wearing of high heels.
Depending on the business, health and safety issues relevant to uniform policies may cover hygiene and/or employee mobility matters. A dress code requirement on health and safety grounds may be viewed as a proportionate means of achieving a legitimate aim and, therefore, provide a defence to discrimination claims. For example, requiring all staff to have long hair tied back is clearly a hygiene issue in food preparation areas.
When deciding on a dress code or staff uniform, employers should balance their desire to present a particular corporate image against health and safety and discrimination considerations. It is also important that employers react appropriately to any questions raised by employees regarding any difficulties they are experiencing with a dress code or staff uniform.
Employers should bear the following issues in mind when implementing a dress code/uniform policy:
- Explain the reasons for specific rules - for example, public image, to protect the businesses' reputation, to enable staff to be easily recognised and for health and safety reasons.
- Communicate the uniform policy to all employees and ensure that they are aware of the penalties for non-compliance which, without good reason, could extend to disciplinary action.
- Apply the uniform policy equally to all employees.
- If any employees raise a query or object to the uniform policy, discuss the issue with them to find out whether their objection is on grounds of sex, race, religion, disability or age, and try to accommodate their specific needs where possible and appropriate.
If an employee is successful in bringing a claim for discrimination, there is no set limit on the amount of compensation which can be awarded. In addition, non-compliance with health and safety legislation carries the risk of criminal penalties for the employer and possibly for key individuals within the business who are deemed responsible for health and safety matters.
Nicola McMahon, Charles Russell LLP