Petitions Committee (jointly with Women and Equalities Committee)
Oral evidence: High Heels and Workplace Dress Codes, HC 291
Tuesday 12 July 2016
Ordered by the House of Commons to be published on 12 July 2016.
Members present: Helen Jones (Chair); Mrs Flick Drummond; Ben Howlett; Catherine McKinnell, Jess Phillips.
Questions 98 - 126
Witnesses
John Bowers QC, Principal, Brasenose College and Member, Littleton Chambers, and Harini Iyengar, Barrister.
Examination of witnesses
Witnesses: John Bowers QC and Harini Iyengar.
Q98 Chair: Good afternoon. I welcome our two witnesses, Mr Bowers and Ms Iyengar. Thank you very much for giving us your time this afternoon for this short inquiry. We are very grateful to you. As you will be aware, we received a petition about making the wearing of high heels at work compulsory. We are looking at that, but we are also looking at gender dress codes in general and the state of the law, but we will also want to discuss with you later whether in fact the law is enforceable easily, and we will come to that in a moment.
Can I kick off by asking you whether you think a requirement to wear high heels or any other gender-specific dress code—skirts, make-up for women and so on—as it stands is lawful, in your view? Who wants to kick off?
John Bowers: It does depend whether it is part of a more general code. If it is a particular conventional dress code that applies to both men and women, then it would not probably be direct discrimination, but it would almost certainly be indirect discrimination because it bears more heavily on one sex than another. The employer can then justify that. Direct discrimination cannot be justified, but indirect discrimination can, on the basis that it is reasonably necessary to achieve a legitimate aim. I must say, speaking for myself, I cannot see many circumstances in which wearing high heels would either fulfil a legitimate aim or be reasonably necessary. There are some aims that may be legitimate for a dress code. For example, projecting an image, announcing who the person is, for police or traffic wardens, or health and safety, or requiring smartness, which applies to the profession that Harini and I are involved in, although we take it to ludicrous lengths by having an 18th century dress code with horsehair wigs.
Harini Iyengar: We have even been allowed to wear trousers in the time I have been in practice.
John Bowers: I think the only other legitimate aim would be where it prevents insignia, for example, which may be offensive to particular groups.
Q99 Chair: Harini, what is your view on that?
Harini Iyengar: I think that if you came before the tribunal you would have pleaded both direct and indirect sex discrimination in both cases, and it depends really whether we want to modernise what we regard as conventional dress. If you look at the case law, the theme is: yes, it is okay to impose a different dress code for men and women, high heels being assumed to apply only to women, and it is to do with requiring equivalent standards of smartness. That requires a conventional outlook. If you look at some of the older cases, for example, there is one 20 years ago in which a nurse said she found it demeaning to wear a little kind of paper hat, and the tribunal found that that was very subjective. I think that case would be decided differently now because a tribunal would be much more sympathetic to her finding that demeaning and find it more plausible. Also the response to this petition shows a strength of feeling; there seem to be a lot of people of both sexes who do not regard smart dress as involving high heels. It is not necessarily clear that it is not direct discrimination.
I have tried hard to think about instances where it would be justified or where you would say it is not direct discrimination because of the job role. The only ones that have come to my mind are a tango dancer—there are certain dances where, stepping backwards, you need a bit of a heel—or maybe if you are a fashion model, a shoe model. You would not be able to say that was directly discriminatory because you just could not do the job if you were not prepared to wear high heels. You could have a West End show with cowboys where the men had to wear heels. I suppose an employer might say smart shoes, and they might say, “Men must only wear Cuban heels below a certain length”.
The nub of this is what we think of as conventional dress, and that depends on who is asking. If I think of the employment tribunals, at the moment we have a good representation of well-educated men and women from diverse backgrounds, and younger people in their 20s and 30s have a different view of what is conventional dress. I am not so confident that it would not be direct sex discrimination to require a woman to wear high heels.
I am also very concerned about the changes we have seen in the law in harassment, where a subjective element is much more respected; people’s expression of their sexuality and also the rights of transgender people have changed radically in recent years. You cannot take a high-heel shoe and say that is something that conventionally a woman would wear and, therefore it is reasonable and acceptable if you say men must be smart or clean-shaven. It is much more complicated than that. When we talk about intersectionality, that is it. You might be a woman and you might identify as a woman, but you might be lesbian; being asked to wear high heels might represent something to you that you really do not want to do. Or you might be a person who is starting to identify or wants to tell people they are identifying as a female, and you might want to start wearing high heels. Those situations are difficult for employers. In looking at this issue, it would be nice if the Committee asked, what are conventional standards of dress, in particular looking at sex identity and gender identity and sexuality?
Also, it is not only shoes as far as I am aware. I know Angela Jackman professionally and I have seen her submission about hair and chemically relaxing hair, and whether those norms are being imposed on black women in particular.
Q100 Chair: Yes. That leads to one thing that I did want to ask you. You are right; the rights of transgender people were raised at our last session. It is whether the law would apply differently to people with different protected characteristics under the Equality Act such as race or age. How do you think that would impact on a case?
Harini Iyengar: For example, if a client came to me and said, “We want to go ahead with this dress code where it says women are required to wear heels of three inches”, just to give an example, I would want them to consider older people in the workforce, say, who may be more likely to have discomfort or have developed foot problems, or people with disabilities. I would see it as a natural, reasonable adjustment within the meaning of the law to say that somebody with a foot condition should not be required to wear high heels and, rather than getting into a legal debate about whether it was a disability in the law, I would consider it good practice, if anybody found the shoe uncomfortable, to excuse them, unless they were in one of these jobs like being a tango dancer.
Similarly, thinking of high heels, there may be certain religious groups for whom modest dress is important. Last time I think there was a general consensus that high heels are perceived as a sexy item of clothing. There may be religious groups who do not want to wear high heels for that reason. I think it is problematic beyond saying, “Is it different from what is required of men?” There are other aspects to it.
Q101 Chair: Thank you. John, do you agree with that?
John Bowers: Yes, I do agree with it. Dress codes can cut across several different sorts of protected characteristics. Religion: a dress code may prevent head-covering, which may impact on Sikhs and Muslims and Jews. Or the age issue. It is important. We have tended to look at this as a discrimination issue. There are two other elements to bear in mind. One is the privacy issue, because of course many employers appear to require employees to wear certain dress code at home or on the way to work, which is not usually a matter that the employer can become involved in. There may in some circumstances be an Article 8 issue, even a right to freedom of expression issue.
The other element that we should not lose sight of is that it is an implied term of the contract of employment that the employer can lay down reasonable standards, and one of those may be a dress code. There may be contractual issues. I do agree very much with Harini that attitudes to this differ over time. When I started 40 years ago, people had different views about wearing suits and ties than they do now, and in different parts of the country, different attitudes.
Q102 Chair: Yes. Thank you. That is very useful, I say as a 60-something who can no longer wear three-inch heels as I used to, I agree about the age problem.
A lot of this, particularly in direct discrimination, is based on the concept of reasonableness. The problem we have is how that is determined in law. For example, in some of the dress codes we heard about, women were required not simply to be clean and tidy and well turned out, as you would expect, but to wear certain amounts of makeup as well as heels. Even the type of nail varnish they would wear was specified. Have you had any cases that might cast light on how reasonableness is judged in these situations, or can you cast any light on it from your own experience elsewhere?
Harini Iyengar: There is very little case law on it in terms of makeup. If it is accepted that wearing high heels is damaging to foot health, that makes it a lot easier to show it is unfavourable. In terms of something like requiring somebody to wear makeup who is a conventional woman and identifies as a woman, I think it would be much for difficult for her to show that that was unfavourable or less favourable treatment. If you had a client who felt strongly about it, you would probably have to send her off to do a lot of research about toxic substances in makeup. You would be in a grey area because many women conventionally do wear makeup.
If you had a client who, maybe for reasons of another protected characteristic—for example, she may have a skin condition. Some skin conditions can count as a disability because there is a specific provision to do with disfiguring conditions. Maybe she has a skin condition so she cannot wear makeup. Then I would feel her case was stronger. To take one example, she may be a lesbian who does not want to wear makeup as an aspect of her sexuality, and that would make her case stronger. If you had somebody like the petitioner, who seems to identify as a straight woman and present herself as a straight woman, it would be—
Q103 Chair: Even though it would cost you more to go to work? Makeup is costly, isn’t it?
Harini Iyengar: I think we have not yet got to the stage where you can talk about those expenses. For example, there is a bit of equal pay case law to do with—that is off on a tangent—the cost of paying for childcare when you are asked to leave the Army, which you would not have incurred if you were working. That does not really seem to register, those kind of social costs, which are huge costs. Research has been done, hasn’t it, on how much women spend on grooming. I suppose it depended whether the employer had a policy. If you were the union, maybe you would be wanting to say, if you have a uniform, you should include makeup in the uniform that is provided.
Chair: [Interruption] Excuse me. Can I just stop you there? Can you just take that outside, please? This is not a cafeteria. I am not having that in my Committee. Sorry, please go on.
Harini Iyengar: At the moment, if there is a uniform of a particular kind, the employer normally supplies it. Some people have different rules about who is paying for what bits of it. There is a rule for disability that the employee cannot be required to pay for reasonable adjustments, but there is nothing like that, as far as I am aware, in terms of women’s grooming standards.
Q104 Chair: John, can you shed any light on this?
John Bowers: Yes. I have never had a case that was fought, although I have advised many employers in both the public and private sector on dress codes. Employers are quite risk-averse on this, and I imagine KPMG would have preferred that they did not have the high heel rule that has led to your meeting.
My observations are twofold. First, it is not just what is reasonable, because in order to get into the gateway of justification you have to show that there is a legitimate aim, and that is fairly narrow. Secondly, it is not just reasonable, but what is reasonably necessary, which is quite a high standard. Those issues are left to the employment tribunal, and a tribunal sitting in Hull may reach a different view than a tribunal—I am not just taking these places at random—sitting in Plymouth, for example. They reflect the standards of the community. We have to be a bit careful about laying down one-size-fits-all—no pun intended—for this particular area of activity.
Q105 Jess Phillips: It seems not very clear to me from what has been laid out and throughout the evidence session last week as well. The union representatives stated that it was unclear; in fact, the employer who was held to account for his actions also did not feel that it was very clear. What is it, do you think, that needs to be done in the law, potentially here in Parliament, to change the law? Or would additional guidance be enough?
Harini Iyengar: In terms of this particular petition, you would have to put an amendment in the Equality Act, within one of the subsections, just to say that requiring a woman to wear high heels will be regarded as unfavourable treatment, or something to that extent. Personally, I do not think that would be helpful for employers in terms of the whole dress code because very few employers would want to just have a rule on shoes. I do think that it would be something radical because people’s attitudes to sexuality and gender have changed a lot, and the youngest people do not really see in the same way the binary division between the sexes—why boys and girls should have different school uniforms, why men and women should have different school uniforms. If you talk to people who are allowed to wear their own clothes in the sixth form, they get quite annoyed about why girls are allowed to have a choice between skirts and trousers, and that would be something really radical for Parliament.
Having said that, I do not think the reality in the workplace would be that different, because we do have transgender people who have to be accommodated at work, and they are accommodated. Normally, employers are very careful to take advice, and most employers want to handle it very sensitively, and they do handle it and it happens all the time.
Q106 Jess Phillips: I only say this because you keep picking up on the transgender point. As a protected characteristic, there are some that are more important than others, because gender seems in this case not to be.
Harini Iyengar: Not more important. The difference here, when we look at the Sex Discrimination Act, is we are asking—if it is direct discrimination—whether requiring a woman, say, to wear a particular shade of lipstick, is less favourable treatment because she is a woman? Or is it not that she is being required to look very smart and he is being required to look very smart in a masculine way. Or is it something to do with indirect discrimination? In other words, everybody is being asked to look very smart. but it is impacting more harshly on her because she has to spend a lot of money or travel to a particular shop to get this lipstick. I think the focus has been on high heels as an aspect: is it a kind of sex discrimination? Whereas if you had a case, it may well be broader. If you are advising the employer on the dress code, you would be telling them, “You have a range of different kinds of people in the workforce. When you make your shoe dress code, think about people who may be older. Think about people who may have a disability or may acquire a disability. Think about people whose gender may change or think about people who may be pregnant during the course of their employment”.
Q107 Jess Phillips: As a woman now, if I do not want to wear high heels and I do not want to wear makeup, do I have any case in law?
Harini Iyengar: I would say it was indirect discrimination.
John Bowers: I think so, yes, but if you are asking what Parliament could do, can I suggest three things? I will be brief. One is to define what the legitimate aims can be so that it is not left to every tribunal over the country to come up with them. I have suggested that there are probably only four. Secondly, do not just deal with high heels, but look at things that are stereotypical to women and may be humiliating for women—for example, makeup, and there are probably quite a few others. The third thing is that it is important that people know in advance when they take a job what the dress code is and that they are not faced with this later. It would probably go too far to say it should be in the statement of terms and conditions because that is fairly limited, but you could say that in the particulars that go out with the job it should state the dress code.
Q108 Jess Phillips: Thinking of it from the point of view of health and safety as opposed to discrimination law, should employers be considering requirements to wear things like high heels—I think the skin condition example is slightly more dubious—as part of statutory risk assessments? As the Chair pointed out, if older women are being forced to wear high heels, it almost eliminates the ability of those women to have those jobs.
Harini Iyengar: Yes. It would be good practice. It certainly would be. If there is now evidence—I understand the College of Podiatrists has sent in evidence—that would be helpful to employers. If there is an undisputed view on it, it would be helpful to have that acknowledged. A lot of women know that from their own experience, but I think a lot of men have not applied their minds to it.
Q109 Jess Phillips: No. Maybe we should make them go out for an evening. Also, are there any specific cases of case law in this field—any precedents that have been set? If there are hundreds, do not feel you have to name them all.
Harini Iyengar: There is the nurse’s hat, and then there is being required to wear a shirt and tie, which is lawful if you are a man. Then there was requiring a man not to have a ponytail.
Jess Phillips: They are mainly around men? Interesting.
Q110 Ben Howlett: I hate wearing shirts and ties, by the way, but hey, here we are. A very interesting set of debates we have been having on the Women and Equalities Committee in relation to the Equality Act in 2010. I was interested by the recommendations you were just talking about there, John, one of which has been debated quite frequently in our Committee, which is a ground for discrimination on a single protected characteristic, not on dual discrimination. I just wondered if you could explore how this would end up benefiting this type of narrative.
John Bowers: You mean introducing the dual discrimination, which is on the statute book but is not being enforced.
Ben Howlett: That is right.
John Bowers: I think it would because you may have cross-cutting issues across sex and religion, for example, or disability and age. As it stands at the moment, you would have to bring a claim under each one of them, and the tribunal could, in theory, say, “It is not that and it is not that; it may be something else, so you fail”. I think it would have some impact in it. I do not wish to exaggerate the impact.
Q111 Ben Howlett: Would you say in this instance it would have a beneficial impact?
John Bowers: Beneficial to the claimant, which is I think what we are talking about.
Harini Iyengar: I do not think it would be disadvantageous to the employer. My impression is that where employers have these dress codes, they are worried about being out of step with their rival businesses. If there were to be a change, businesses would have to feel confident that they were not going to damage their commercial interests by doing something eccentric. That is the cultural change, where businesses could feel more comfortable that they are applying best practice and being modern, rather than doing something eccentric and alone.
John Bowers: If you speak to employers, they will say, “Our customer base finds it very important that we have this image”. I suspect, if you actually polled the customer base, in many cases they could not care less. It is quite interesting. In solicitors and barristers, increasingly people dress down except when they go into court. I do not think the customers care one jot.
Q112 Chair: Before I move on to bring Catherine McKinnell in, can I just ask you, John, to expand a little on what you would put on your list of legitimate aims? I think this is quite important for employers and for employees. What do you think it would be legitimate for the employer to be trying to achieve and what would not be?
John Bowers: Yes. This is one I prepared a little earlier. First, issues of health and safety, because it is legitimate. That is the opposite, of course, of the case in high heels, but there may be legitimate grounds for dress codes. Secondly, if there is a truly necessary public image that needs to be fostered, although personally I cannot think what one would be, except in my other day job of being a judge. You have to look smart, and it would perhaps reduce people’s confidence if you turned up looking scruffy. Thirdly, to project a smart and uniform image, and of course that is the argument that is usually made in relation to school uniforms; that you want everybody to appear the same and that the rich do not have a benefit. Fourthly, to restrict dresses or insignia that may cause offence to people, whether it be Nazi regalia or badges. There was an old case about banning offensive badges. Someone refused to go along with—
Q113 Catherine McKinnell: I wanted to ask about the actual process of dealing with a complaint where you have one, but I will just continue slightly on from what Jess was asking. Turning this on its head and at the risk of opening up a Pandora’s box, if a woman in the workplace was made to wear exactly the same clothes as a man, probably for the public image and for health and safety reasons, and they found it to be deeply unattractive because it was clearly an outfit that was designed for men but then was simply applied to women, so not so much in the retail sector where this issue arises, but more, for example, in the post office. I am not suggesting that the Royal Mail do make women wear exactly the same as the men; I am not entirely sure what the situation is. If a woman felt she was discriminated against in that and she felt deeply unattractive at work and did not, therefore, feel attracted to the role, would that fall within the realms of discrimination?
Harini Iyengar: I struggle to see how she would succeed, and I am thinking of jobs such as being a firefighter or one of those active jobs, or working on a construction site, where you might be required to wear trousers or a bulky protective suit that is not very flattering to your figure. I think a lot of women do wear those. If it was the wrong size, you would have grounds to complain because it would not be safe or it could cause a hazard: ill-fitting safety equipment and so on. If it was tailored to the female body shape but it just happened to be trousers, I think that she would struggle to show that it was less favourable treatment because—again coming back to these conventional standards—a lot of women wear trousers a lot at the moment in 2016.
Chair: That would be because it was necessary to do the job, wouldn’t it? Yes.
Q114 Catherine McKinnell: Yes. I use the Royal Mail as an example only because there do not appear to be any health and safety reasons particularly because it is not a building site.
Harini Iyengar: Just to take trousers, as some women do not like wearing trousers and they prefer to wear a skirt, I think if it was just on the basis of sex it would be difficult for her to show it was less favourable treatment unless there was something else. For example, certain orthodox Jewish communities do not encourage women to wear trousers. There may be something else about her that made it less favourable.
Catherine McKinnell: Are you happy to leave that one?
John Bowers: The only thing I would say extra is that in order to prove any discrimination case, whether it be indirect or direct, you have to show a detriment. The tribunal may say that in that situation there is no detriment, and that in itself can be quite a loaded issue. I think you wanted to ask how a complaint would actually be—
Q115 Catherine McKinnell: Yes. Obviously we have looked at the legislation, and whether it is clear, but the legislation is only as good as a complainant’s ability to use it, and one of the pieces of evidence we heard was from Nicola, who was sent home because she refused to wear the high heels, and she went home without pay. The people who are put in this situation are often in quite insecure work. It is agency work or it could be on a zero-hours basis. What do you feel is their best way of challenging in the workplace where they feel they are being discriminated against?
John Bowers: The problem is, of course, that because of the introduction of fees for employment tribunals, these sorts of cases are among those that are not being brought because even if you win a case like this, the award is likely to be £250, maybe £1,000, and you are being told that you have to run up a bill of several hundred. Unless you have a pressure group or you can get crowdfunding or a sympathetic lawyer to help, it is very difficult. Also, inevitably, the case is heard six or nine months after the issue arises. Sometimes unions will take up these cases, but in fact in many cases they will not.
Harini Iyengar: Especially recently.
Chair: Sorry, we did not catch that.
Harini Iyengar: I think that 10 years ago or more we would have more cases brought by what was then the Equal Opportunities Commission or Disability Rights Commission, and it seems to me the unions were more active. There seem to be more people, especially at the less well-paid end of the labour market, who are not in a union and do not have any group that can give them support or guidance. There are a lot of vulnerable people who may not even know what rights they have and would find it very difficult to enforce those rights at the moment.
John Bowers: I think one of the best ways is to get public sympathy, as indeed this case that caused your inquiry. I hinted earlier that what really weighs with the employer is not so much losing a case that costs £250, but being in the public eye, with people saying that that employer is behind the times.
Q116 Catherine McKinnell: Do you think there is enough of a disincentive for employers to breach the discrimination legislation?
John Bowers: Generally, the answer to that is no, particularly since the introduction of fees. As Harini rightly says, most of the big cases over the last 30 years have been brought by the predecessors to the EHRC. It is really doing very little at the moment because the funding has been cut back so much.
Q117 Ben Howlett: The first panel of witnesses we heard from used quite a damning phrase. They said that there was institutional sexism within the workplace, which is quite alarming in many ways. My theme of questions was around tackling systemic breaches of the equality law. We have heard that in some sectors, particularly in hospitality and in tourism, wearing high heels is quite commonplace. If the employer knew or thought that there was a high probability that this could be a breach of the law, why do you think so many employers are getting away with that type of policy?
John Bowers: They take a punt that nobody is going to bring a claim. Particularly in the hospitality industry—I am sure I do not need to tell members of this Committee—people are working in gap years or on zero-hours contracts, so the last thing they are going to do is rock the boat. Often these sorts of claims are only brought when people have left a particular job and they are bringing other claims, and they effectively, as we call it, top it up with claims such as this.
It is a real problem because it is not confined to dress codes. There are a whole host of employment rights that are not being taken advantage of by the people for whom they are intended. National Minimum Wage and working time are obvious other instances.
Harini Iyengar: I think that the drop-off in employment litigation is now starting to affect the advice that we give to employers, because where we might have said, “In my opinion, you may well be at risk of claims”, now you have to think, “Can I properly write that?” and instead I maybe have to write something like, “It would be best practice if you did this, this and this”, rather than, “I need to advise you that you may well get sued”. From the business point of view, what you might have been able to present to your board, say, as something we need to do to protect ourselves from getting sued, you might now be presenting to the board as, “This would be best practice if we did this”. Then you look at your rival businesses and ask yourself questions such as whether they are going to be investing the same amount of money into being a best practice employer, and how does that affect our competitiveness?
Q118 Chair: We heard some quite worrying testimony from young women who were obviously quite vulnerable, starting out in the workforce in temporary jobs. It was also quite clear from some of the employers that we had in that they had never even thought that this might be discriminatory. They had not taken any advice on it in terms of either discrimination or health and safety. In your experience, how can we better educate employers about this? The good employers will come to people like you for advice, but others do not, and that seems to be part of the problem.
John Bowers: I think it is the case throughout law that the good employers are compliant. The bad employers do not go anywhere near it. Traditionally, the Government has looked to codes of practice and to seek to educate people around that, but I think there is a really big job of work by unions, Government and EHRC to get employers to think about these sorts of issues. Of course, if Brexit goes through, a whole swathe of discrimination provisions that come from Europe could be taken away.
Harini Iyengar: What I have seen in the course of my career, which is 16 years, is that litigation has come to be seen as a very negative thing or a breakdown in the relations between the employer and the employee. Obviously, it is good if the employer and the employee get along, but if you look back, especially over discrimination legislation, that has been a good way of enforcing and clarifying the law, because when there is a case, it gets reported, and it gets reported in the law reports, in the newspapers sometimes, and also in particular in HR professional journals. That is how the word spreads, and then the employers who do not invest so much in being best practice employers hear of it, and their HR professionals know there is a signal from the court.
There has been a huge shift in recent years away from that method of enforcement of the law, and it is a challenge. If we are not to have the same volume of test cases clarifying the law, what else is there to ensure that the law is living in practice and not just on the statute books?
John Bowers: You have to get it on the agenda for the main board of companies, and that is partly about making it expensive for people not to comply. There is another area that we have not talked about that does not happen in discrimination law but could, which is to allow people to seek an injunction. In other words, individuals would do not wait for six months until the case gets before a tribunal and then get £250 compensation. Individuals, or trade unions or the EHRC could bring an injunction to prevent a company having a ludicrous high heel policy or whatever it is. It is raising the profile of it, and partly that is about having more diverse representation on boards, along with other things.
Q119 Ben Howlett: While we are still on that point then, to be clear—I know, but for the record—what sort of sanctions are in place and what disincentives are in place to stop companies from implementing a sexist or discriminatory type of policy?
John Bowers: At the moment it is compensation, and a tribunal can make recommendations. Until I think about a year and a half ago, they could make recommendations across the board of a company in terms of the company’s practice, but that was amended so it can only deal with a particular claimant. There are some limited provisions about injunctions, but that is only where there has been a formal investigation. I think in advertising there can be an injunction, but it has been much more limited here than it is in the States, for example.
Q120 Ben Howlett: One of the topics that came up quite heavily in the last evidence session was around Acas. Interestingly, you have not mentioned Acas yet in terms of what is available and what information is available to employers and also those people who need to seek a right to redress. Have you had a look at it, and what are your thoughts? Do you think it needs to be improved, and how would you improve it?
Harini Iyengar: There could be a detailed code of practice. There is a little bit of guidance from Acas, but if you worked a small business and you had a complaint, “I don’t fancy wearing high heels”, and you went to your HR manager, who said, “Oh, it says it’s written here”, and you wanted to know what the legal answer was, I do not think the Acas guidance would help you. As a lawyer, what would I say? It would be better for workers in smaller businesses if they had the opportunity to take legal advice, but unfortunately the reality is that small businesses are unlikely to put their hand in their pocket to get specialist legal advice unless they are facing a claim or a threat of a claim, and it is a big burden to expect a vulnerable worker to make herself the claimant in a piece of litigation that may see her out of a job. Even if she wins, she may not have the reputation in her industry that will help her get another job.
John Bowers: I think Acas is brilliant. It does some brilliant work. It is mainly concentrated, as you know, on conciliation services. My experience is that it has tended to leave the educational work to the EHRC, which is the body that has been cut back, and probably more than Acas, in terms of funding. There is a case—that is probably a side issue—for saying that the enforcement and the advice was better when there were three different commissions, the EOC, the CRE and the Disability Rights Commission, because they became specialist in their own areas.
Q121 Ben Howlett: There is a big call, by the way, for the telephone hotline to be moved back with the Equality and Human Rights Commission so that it knows what is coming in and what sort of policies need to be put into place as a result of hearing the information directly. There is a bit of a disconnect there, and that needs to be looked at.
My very last question relates to a lady who—you have probably heard the case; she had cerebral palsy—was asked to wear heels. She ended up challenging this with her employer, and her employer gave her a rather large payoff to prevent her going through to a tribunal. From a legal perspective, where an employee accepts a payoff like this, is there any other sanction to the employer?
John Bowers: The legal fees and the publicity, and that is the end of it, because unless the employer has agreed to a code of practice or a protocol going forward, which could be part of a settlement, that is it.
Q122 Mrs Flick Drummond: Thanks. This is the last one. It is just to clarify it. If there are unwritten rules in the dress code, does the law offer any protection at all against any discrimination? For instance, some remarks might be made about your dress, but it is not written down in HR.
Harini Iyengar: You can have an unwritten policy, which would be looked at in the same way as a written policy in terms of indirect discrimination, but the difficulty would be for the individual to prove it. If it is a high heels case, she would have to have some sort of evidence that this had happened, or it would be—which is very often the case and typical of sexual harassment—one person’s word against the other’s. Those cases do proceed on the basis of one person’s word against the other’s. Depending on what remarks have been made, it might be that she brought it as a complaint of indirect discrimination to do with requirements put on her, or she might bring it as a harassment claim, depending on what was said.
Q123 Mrs Flick Drummond: There is case law, somewhere to follow?
Harini Iyengar: Yes. The other question that has crossed my mind goes back to enforcement. Even if the law were to say very expressly what the dress code was or even guidance, not everybody is able to enforce it. It could be, in some environments, that there is something written in the HR handbook and there is another code of practice that is affecting people on a day-to-day basis, but that just depends on the business—how well run it is.
Q124 Chair: You have already referred to some changes in the law. One of the things we are concerned with is both whether the law is adequate and the problems of enforcement. We have heard from you about the problems of enforcement and we heard a lot in our first session about that. Are there any changes in the law that you would propose to make the law clearer to employers and to protect employees better?
Harini Iyengar: I like John’s suggestions that focus on making it clearer for employers what legitimate aims can be, because at the moment employers probably would receive general advice along the lines of, “You can impose a dress code that is different for men and women, and it should be reasonable and conventional”. It is in that area that employers find it very confusing; regional standards or standards in different occupations may differ. It is only if there is very good communication between those making the dress code and those actually wearing the dress code—where the people wearing the dress code feel able to honestly say what they find offensive or demeaning or uncomfortable—that you would end up with a real understanding of what is reasonable. I like John’s proposal. It is a bit like in flexible working. Although there are many problems with that legislation, at least there is a list in terms of, “When can I say no?” and I can look at this list. “You have to say no on the basis of one of these reasons.”
John Bowers: The other area: although this is quite a technical point, I would make it easier to bring class actions in employment tribunals. How things stand at the moment, each individual case on high heels brought separately goes before a different tribunal, and you have to have a named claimant, which can then lead to issues of victimisation or even not being able to get a job in the industry.
In America, you can bring a claim as John Doe or whatever the female equivalent of that is—Jane Doe. Then you have a whole host of people who stand behind that. You can do that here in equal pay cases, but it is very difficult, if not impossible, to do that in cases such as this. There are generic issues attached to it. You could have a law that says that requiring high heels in itself would be discriminatory, but then you get into what is a high heel, and are we really concerned about the high heels, dare I say, that the new Prime Minister wears, or are we talking more about the bigger, three or four-inch ones that may be more sexualised and more stereotypical?
Also, what one wants to do in legislation is to be more general than picking out the specific issue that has brought the thing to the fore.
Q125 Chair: Yes, and that is useful because, as I say, we are concerned with gender discrimination in dress codes, not simply the high heels. Those are very useful contributions. Thank you. Can I just ask before we wrap up if there is anything else anyone on the Committee wants to ask and you have not had a chance to ask? Is there anything else you would like to say to us on this topic that you have not had the chance to say?
Harini Iyengar: Just on a final point, there are a couple of states in the US where they have this looks discrimination, which is very far removed from anything we have here, but is to do with the pretty side. Should receptionists look pretty and sexy? It is contingent on what we have been talking about in terms of makeup and heels and how many buttons are fastened on a blouse and so on. That would be a real change from what we have now, and that would also raise other issues about beauty norms, which are coming to the public attention in terms of what is healthy and what is unhealthy, what images we should have on public transport and so on. That would require some thought.
Also, we should look at racialized aspects of beauty. At the moment, that is all viewed through the lens of sex discrimination, and I suppose you would want to ask some questions such as when does the corporate image involve looking sexy or attractive, and to what extent is the company allowed to impose racialized norms or norms to do with people’s sexuality?
Q126 Chair: John, was there anything you wanted to say?
John Bowers: I would just say two things very briefly. Uncertainty is a problem for employers. The more certain the law could be, the more employers would welcome that. Just to re-emphasise that these attitudes do change over time and between different groups, and of course one of the issues that is tangential to this is the right of religious communities to set down their own codes, which is a whole other area.
Chair: John, Harini, can I thank you both very much for the evidence you have given to us this afternoon? It has been extremely helpful. We are aware that you are both very busy and taking time out of your schedules is difficult, so we are incredibly grateful to you for coming along. The only thing I would say, as I say to all witnesses, is if, when you have gone away, you think of something that you should have brought to our attention and you have not, please feel free to send that in as written evidence. Thank you both very much once again. Thank you.