Dress code guidance
Labour & European Law Review Weekly Issue 517 26 April 2017
Following an inquiry by the Women and Equalities Committee into high heels and workplace dress codes (weekly LELR 477), the government has agreed in its response to the committee’s report to produce guidance on the issue for employers.
Whilst recognising that the law to deal with this sort of discrimination already exists, the government acknowledges that some employers lack awareness of the law or even choose to flout it, taking advantage of reluctance by employees to take action when they feel discrimination has occurred.
It has therefore agreed to consider changing the law to define the term “legitimate aim” which can be used by employers to justify indirect discrimination. The committee proposed four legitimate aims:
- 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.
The government says it will consider including these as illustrative examples in the guidance currently being prepared, whilst pointing out that all of them could have implications for religious aspects of dress codes at work.
However, it rejected the committee’s recommendation to substantially increase the financial penalties for employers found by tribunals to have breached the law on the basis that they already have the power to award compensation for injury to feelings as well as financial losses.
As such, tribunals can take into account various matters including the individual’s personal characteristics, any relevant medical condition or particular vulnerability, the actual impact of the discriminatory act or acts on the individual and the extent to which the employer has sought to make amends. Tribunals currently have power to make these awards in accordance with the Vento guidelines which the government says are proportionate and fit for purpose.
It also rejected the recommendation that tribunals should be allowed to award injunctions in these types of cases saying that its use by tribunals would be “disproportionate”. It would, however, be prepared to encourage employers to suspend a disputed rule pending resolution at tribunal, and has also agreed to consider this issue in the guidance being prepared.
Jo Seery, of Thompsons Solicitors, added “Whilst guidance for employers is welcome it is likely to be limited in terms of changing the behaviour of those reluctant employers whom the Government recognises exist.
Effective enforcement of the law only comes when individuals are able to assert their rights in the tribunal and that is unlikely where a fee of £250 has to be paid first.”
To read the government’s response in full, go to: https://www.publications.parliament.uk/pa/cm201617/cmselect/cmpetitions/1147/114702.htm