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SSShhh Sexism in the workplaceSSShhh Sexism in the workplace - it might be there without you even knowing it!

» Posted on: 29 May 2014

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The Telegraph's Louisa Peacock recently reported that she had been turned away from chic and trendy London restaurant after the doorman judged her to be unsuitably dressed. At the time, she believed her smart black trousers and shoes fully conformed to the restaurant's "smart casual" dress code. She noted at the time that men wearing similar smart casual attire were being allowed entry, as were women dressed in skirts and high heels.As a consequence, she complained to the restaurant's management of the 'sexist' treatment she had been subjected to, who took the situation extremely seriously and fired the doorman from his position.

It is the responsibility of employers to make sure all employees are alert to any Equal Opportunities policies in place and that they are fully aware of the impact these policies have not only on them and other employees, but on third parties associated with the company, such as suppliers and customers.

Employers need to make sure they are not implementing unreasonable dress codes; expecting women, or indeed men, to conform to a certain look or dress in a particular way can be sexism, be that in a swanky City restaurant or the workplace and dress codes for male and female staff should be suitable and reasonably enforced. Where discrimination is alleged, employers should investigate and take action if necessary.

Other interesting workplace dress codes

  • The TUC has previously reported that airline bosses, city banks and West End department stores have been accused of having "sexist" dress codes that force female staff to wear high heels.
  • UBS, the Swiss investment bank, issued guidance in 2011 talking about the colour of female employees' underwear, the best perfume to wear and the length of employees' toenails.
  • In 2003, JP Morgan issued a three-page memo reminding male members of staff to shave, polish their shoes and to consider investing in an iron.

So is imposing a code sex discrimination?

The answer is that it depends.

In the case of Schmidt -v- Austicks Bookshops Ltd, the company's employment rules prohibited female workers from wearing trousers, a dress code which was upheld by the Tribunal. Miss Schmidt refused to comply and was dismissed.

The EAT said she had not been discriminated against because the company had also imposed different but equivalent restrictions on male members of staff.

Employers can, therefore, treat men and women differently, as long as they don't treat one or other of the sexes less favourably.

In the case of Smith -v- Safeway, the Court of Appeal upheld an Tribunal's decision that a man dismissed for refusing to cut his hair was not discriminated against on the grounds of his sex even where a woman with identical hair length would not have been dismissed. The court said requiring a conventional standard of appearance was not of itself directly discriminatory.

The EAT held that where rules applied to men and women "although obviously, men and women being different, the rules in the two cases were not the same", there was no discrimination because "the employers treated both female and male staff alike in that both sexes were restricted in the choice of clothing for wear whilst at work".

The same question can be asked of whether imposing a dress code can lead to religious discrimination.

It is also possible for claims to arise if an employer's policy has a disparate impact on a particular racial group.

In the case of Eweida -v- British Airways plc, Christian woman, Nadia Eweida, lodged a claim against BA for refusing to allow her to wear a crucifix.

The airline said that it breached uniform rules stating that staff must not wear visible jewellery or other "adornments" while on duty. The company allows religious items such as turbans, hijabs and bangles to be worn as staff cannot hide them beneath their uniforms. Ms Eweida argued that it amounted to religious discrimination.

Eweida's argument before the court was that indirect discrimination can be established if only one individual's manifestation of their religious belief is affected by a policy. However, the court held that the Religion or Belief Regulations were clearly intended to address 'group' discrimination.

Miss Eweida lost her case at both the Tribunal, EAT and Court of Appeal on the basis that the policy did not result in group disadvantage, merely subjective disadvantage for the employee.

But it is interesting to note that, although Eweida lost her claim, the media storm surrounding the case led to BA changing its uniform policy to allow her to visibly wear the cross.

Where a sex discrimination claim is made to a Tribunal, there is no upper cap on the amount of compensation that can be awarded for a successful claim. It is therefore imperative to ensure that you have a robust Equal Opportunities policy in place and, where appropriate, that training in provided to your managers to avoid any future claims.

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