Guest column: Kevin McKenna – the pain of high heels

Kevin McKenna, head of employment for Manchester law firm Kuits, gives his insight on the publication of the ‘High heels and workplace dress codes’ report by the Petitions Committee and Women and Equalities Committee of the House of Commons.

The report follows the committees’ enquiry following a new petition calling on the government to make it illegal for a company to require women to wear high heels at work.

This investigation followed on from the experiences of Nicola Thorp, who was sent home from work in December 2015 to change out of the flat shoes she had been wearing because they did not comply with her agency’s dress code, which required women to wear shoes with a heel height of between two and four inches.

THE vast majority of media stories we’ve seen are calling for the government to enforce the law in order to ban sexist dress codes. However, the point most are missing is that this issue does not lie with the current legal framework or its enforcement. In actual fact, all of the necessary legal regulation to protect employees is already in place.

Instead, what we think is the real – and, perhaps, lesser understood – story here, is that Nicola Thorp chose not take legal action against her employer, but rather started an e-petition, which attracted so many signatures that the Petitions Committee were obligated to take it further.

If Nicola Thorp had decided to bring an Employment Tribunal claim against her employer, she might have expected compensation of no more than £1,000. However, she would have had to pay a fee of £1,200 just to take her case to the Tribunal. This does not include any costs she would have had pay for legal advice and representation.

Indeed, the wider issue in this story is that recent changes in the Tribunal system have placed significant barriers on individuals wishing to bring a claim after suffering what they believe to be discrimination in the workplace.

It is a sobering statistic that the number of sex discrimination cases brought before Employment Tribunals fell 68% from 2013 to 2015 following the introduction of Tribunal fees. This particular case, then, is only a symptom of an underlying problem that exists across all employment rights, and the protection against discrimination in particular.

Not only is this an issue for individuals themselves, but for employers too: the fact of the matter is that the fewer cases there are brought to Tribunal, the less case law there is to work with. Without the guidance that real cases give us, employers and employees are often left in the dark about where they stand legally, if not commercially.

In addition, compliant employers are indirectly punished because, without effective enforcement, there is no penalty for failing to comply with the law.

Employers should remember that imposing a dress code can be unlawful and discriminatory on a number of grounds, not just towards women. For example, a requirement to wear high heels can have a disproportionate impact upon people who suffer from a range of physical impairments and disabilities.

The published report recommends that a publicity and education campaign should be launched, so that employers are made aware of their legal obligations and employees know how they can complain. Whether or not this provokes the Government into issuing larger financial penalties on employers that fall foul of the law is yet to be seen.

Either way, employers should expect further grievances to be raised in this area going forward and, therefore, ensure they have reviewed their policies with an experienced legal adviser.

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