A couple of weeks ago the press was abuzz with stories on dress codes after the Petitions Committee and Women and Equalities Committee of the House of Commons produced its report into gendered dress codes. the Reports came about after Nicola Thorp was sent home after she refused to wear high heels at work. The government acknowledged that Ms Thorpe’s treatment was discriminatory under thee Equality Act 2010 and the report makes recommendations that may, if implemented and investigated, result in a change in the law at some point in the future. Presently to succeed in a claim of direct discrimination the worker must show that they have suffered “less favourable treatment” than another who is identical to them in all relevant features other than their protected characteristic. so a woman required to wear high heels would beed to compare their treatment to a man. Could the woman claim this requirement is “less favourable” than a man who is required to attend work dressed to an equivalent level. the fact that the treatment is different does not necessarily mean it is “less favourable”.
The Report, therefore considered looking at changing the definition of “less favourable treatment” to include the subjective feelings of the worker.
The Report also looked at a claim of “indirect discrimination. this occurs when employees are treated the same but this universal factor disadvantages one element of the workforce more than another. So, for instance, the police used to have a height requirement below which officers would not be recruited. on its face this seems ok: it applied to everyone, but women were statistically less likely t achieve the relevant height, so the requirement was indirectly discriminatory towards them. The disadvantage for workers in claiming indirect discrimination is that the employer can seek to justify it by showing that the requirement it imposed had a legitimate aim, and that by imposing this requirement was a proportionate means of achieving that aim. The Report seeks guidance from the Government as to what a “legitimate aim” is in dress code situations, and one wonders whether there ever could be a legitimate aim for requiring the wearing of high heels.
This said, the real issue it seems to me, is that even if these rights were to be introduced, enhanced and bolstered the question is access to those rights by workers and a willingness for the affected worker to put their head-above-the-parapet and challenge the requirement. The tribunal fee levels have, the Government accept in its recent report, “discouraged people from bringing claims”, whilst the committee heard evidence that women did not wish to challenge the dress code with their employers for fear of being passed up for promotion. without a suitably open system of justice or a culture that internal challenges will not be punished, the new rights will be toothless.