25 April 2017

Today the Government announced that it will produce guidance on the law on dress codes, following a joint report from the Petitions and Women and Equalities Committees. Those committees called for urgent action to prevent discriminatory practices relating to dress at work.

While the petition calling employers to be banned from requiring women employees to wear high heels at work gained more than 152,000 signatures, it was rejected by the Government, which said existing legislation is sufficient and provides enough scope for redress, and that guidance will be issued in the near future.

This announcement comes just after an Employment Tribunal considered a claim where the employee, a salesperson, was told to “wear a low cut top” and “use her womanly allures” to increase her sales. She raised a complaint about this. She did not survive her probationary period and was dismissed. The Employment Tribunal found that there was sexual harassment and victimisation and made an award of £11,504, despite noting that the Claimant’s evidence in relation to her attempts to secure alternative work was not credible.

Naturally this case was very fact specific (and the case report makes interesting reading), but the case is another reminder of the importance of the rules on burden of proof since the Claimant was able to show by the production of documentation that she was a good salesperson with a strong performance. Despite this, the Respondent chose not to confirm her employment (in preference to others with poorer performances). The Respondent was required to show that the reason for the treatment was in no sense whatsoever unlawful. The Respondent failed to do so.

Employers need to be very careful in ensuring equality of access and opportunity during employment. The Equality and Human Rights Commission Code of Practice provides excellent guidance in managing these issues in a practical context. See https://www.equalityhumanrights.com/en/publication-download/employment-statutory-code-practice

Employers need to ensure that staff are fully trained on diversity at work and that relevant policies in this area are created, updated, implemented and consistently and fairly applied. Keeping documentary evidence that establishes the real reason for treatment of staff will be key in defending any claims that arise. BTO can help train your staff and managers in this area. Given the potential for personal liability and the risk that employers can be liable if they have not taken all reasonably practicable steps, providing all staff with training is a sound investment.

This can be a complex area of law and practice, given the absence of any cap on awards of compensation and the propensity for inappropriate human behaviour in some cases. Speak to one of the BTO employment law experts to help minimise the risks that arise in this area on an almost daily basis.

The judgment can be read here: https://assets.publishing.service.gov.uk/media/58dcf5d1e5274a06b0000080/MsS_Alrajjal_v_Media_10_Ltd_32001542016_Full.pdf

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.