Akua Reindorf considers the implications of the latest recommendations concerning the use of sexist dress codes at work.
The Joint Committee report on high heels and dress codes at work shows that discriminatory dress codes can promote the sexualised objectification of women at work, disadvantage people with disabilities, inhibit employment prospects, impair work performance and cause long term and substantial damage to health.
The Joint Committee recommends a change to a subjective test for less favourable treatment, so as to make it easier to show discrimination in dress code cases. It also recommends higher financial penalties on employers and a power to grant injunctions in the Employment Tribunals in such cases. It notes the impact of Employment Tribunal fees on access to justice, and recommends that the Equality and Human Rights Commission be funded to take on test cases in this area.
These recommendations are far reaching and would seem to have been made in hope rather than expectation. With fees already hobbling the effectiveness of employment law, and with Brexit on the horizon, it seems highly unlikely that the Government will act to dramatically expand the scope of discrimination law and the jurisdiction of the Employment Tribunals, whether for dress code cases or for any other type of discrimination claim.
In December 2015 Nicola Thorp, a temp on the books of Portico, an agency providing “high quality, tailored front and back of house guest services”, arrived for a job at PwC wearing smart, flat shoes. She was sent home for not complying with the Portico dress code, which required female workers to carry out their duties wearing high heels of between 2 and 4 inches.
Ms Thorp considered the requirement to be unfair and discriminatory, but rather than bring an Employment Tribunal claim she instead started an e-petition on the parliament.uk website calling for the compulsory wearing of high heels at work to be made illegal. The petition gained over 150,000 signatures. As a result of the petition, the House of Commons Petitions Committee and Women and Equalities Committee conducted an inquiry in the summer of 2016 into requirements to wear high heels and dress codes at work more generally. Their report was published on 25 January 2017.
This thorough and impressive report concludes unequivocally that employers who require women to wear high heels at work are “seriously failing in their duties towards their employees” and causing short and long term damage to health and wellbeing. Furthermore, dress codes which impose requirements to wear make-up or skirts above the knee make some workers feel sexualised and may expose them to unwanted sexual attention, as well as reinforcing rigid gender stereotypes which might make some workers, especially LGBT+ workers, feel uncomfortable and deterred from entering certain professions or advancing within them.
The report notes that many of the workers affected by discriminatory dress codes are young women in insecure jobs who already feel vulnerable in the workplace. A combination of job insecurity, lack of understanding of the law, a paucity of case law and restrictions on access to justice have resulted in a situation in which discriminatory dress code requirements are widespread and largely unchallenged.
A package of measures, including changes to substantive law, is put on the table:
– An awareness campaign focussing in particular on certain sectors of industry (eg hotels and tourism) and including all sixth form and further and higher education institutions, to help workers to understand how they can make formal complaints and bring claims if they believe that they are subject to discriminatory treatment at work, including potentially discriminatory dress codes. This should cover discrimination in the workplace and in job applications, statutory employment rights and approaches to seeking advice and resolving disputes.
– Updated guidance for employers from the Minister for Women and Equalities, working with ACAS and the Health and Safety Executive, to be published by July 2017. This should at cover, at the very least, “more controversial dress code requirements”.
– An analysis by the Government Equalities Office and the Ministry of Justice of the proportion of direct discrimination dress code claims which have failed due to an inability to establish less favourable treatment, and of how many potential Claimants have been deterred from bringing claims because they feel that the law is unclear.
– Consideration by the Government of adapting the less favourable treatment test “to place greater weight on the subjective element—the claimant’s feeling of being discriminated against—and issuing guidance to this effect”.
– An analysis by the Government of what proportion of indirect discrimination dress code cases fail because the employer was found to be pursuing a legitimate aim.
– Consideration of a change to the law to specify what constitutes a legitimate aim in such cases. The Joint Committee suggests that legitimate aims should be:
- health and safety;
- to establish a truly necessary public image, for example, the judiciary;
- to project a smart and uniform image; and
- to restrict dresses or insignia which may cause offence.
– A substantial increase in financial penalties in dress code discrimination cases, which should be set at a level to ensure that workers are not deterred from bringing claims and that employers are deterred from breaching the legislation. This could include a requirement that the employer makes a payment to every worker subjected to the discriminatory dress code.
– Injunctions should be available in the Employment Tribunal to challenge dress code requirements.
– An enhanced role for the Equality and Human Rights Commission in bringing test cases and appeals, in light of the “obvious threat to the effectiveness of antidiscrimination law” brought about by the introduction of fees in the Employment Tribunal and the resulting drop in claims (eg a 68% drop in sex discrimination cases between 2013 and 2015).
What is particularly striking about this report from an employment law perspective is the extent of the recommendations for Government action to tackle not only discriminatory dress codes but also public understanding of anti-discrimination law, the effectiveness of the law itself and access to justice.
It is hard to imagine that the Government will take the recommended step of changing the long-standing tests for less favourable treatment and legitimate aim in order to tackle discriminatory dress codes. It is of course difficult to show less favourable treatment in a dress code case, given the challenge of meaningful comparison when there are already different societal norms for men’s and women’s clothing. However, changing the less favourable treatment test so that it focusses more on the worker’s subjective perception of having been discriminated against would be a highly controversial measure which would dramatically expand the scope of direct discrimination and would run counter to the statute and developed case law.
It would seem unlikely that such a change in the law could feasibly be limited to dress code cases alone. Effectively this is a recommendation for a fundamental change to the established approach to direct discrimination.
Of course, much of our anti-discrimination law and jurisprudence has its roots in European law, from which we are soon to enjoy the questionable pleasure of release. Although the less favourable treatment test originates from domestic law, the scope of direct discrimination is certainly policed by the European Directives and CJEU/ECJ case law. It would be extremely surprising if the Government were to use the occasion of Brexit to broaden the scope of anti-discrimination legislation rather than to pursue the widely feared bonfire of employment protections heralded by it.
Similarly, the recommendation that increased financial penalties should be placed on employers who operate discriminatory dress codes is a bold step in light of the generally “pro-business” narrative underpinning both Brexit and the Government’s approach to employment law. Overwhelmingly, damages for unlawful discrimination are compensatory and not punitive. On occasion this includes aggravated damages, but it is only in the most serious cases of abuse of governmental power that exemplary damages may be awarded. The Joint Committee does not specify in its report the basis on which an increased level of damages should be awarded in dress code cases, nor why they should exceed the damages recoverable in other types of discrimination claim.
The recommendation that Employment Tribunals should be able to grant injunctions in dress code cases could open the door to a considerable expansion of the jurisdiction. Tribunals are currently only able to grant interim relief in specific types of case, and it is a power which they are rarely called upon to invoke. Injunctive relief in dress code cases could head off the possibility of expensive and time-consuming litigation down the road, at a time at which the damage is already done. However it is hard to see why injunctive relief in the Employment Tribunal should be available in dress code cases alone, when other types of discrimination claim could equally benefit from the early intervention of the Tribunal.
The Joint Committee is to be applauded for clearly identifying the grave threat to access to justice posed by the fees regime in Employment Tribunals. Dress code cases are a particularly pertinent example of the types of case which are likely to be hit hardest by the introduction of fees: they are difficult to prove, usually low value and tend to affect those in insecure, low paid employment. Nonetheless they are serious cases and they raise issues which warrant legal protection which is realistically enforceable.
It is notable that the Joint Committee has drawn the line at recommending that the fees regime be scrapped altogether, but has opted instead for a recommendation that the EHRC be enabled (and funded) to pick up the task of pursuing litigation in this area. Whilst dress code cases are an excellent illustrative example of the effect of fees, they are hardly alone. Claimants are deterred by the fees regime in all types of case. Enabling the EHRC to take up the slack in dress code cases alone would be a sticking plaster remedy when it comes to access to justice more widely.
Overall this report comes at an interesting time, with access to justice already drastically impaired by the fees regime and Brexit looming as an existential threat to employment protections across the board. The dress code issue, important on its own terms, also provides an insight into the state of health of UK employment law and its prognosis.