This post provides a brief summary of emerging findings from the research project ‘‘Exploring the Secondary Pains of Indeterminate Imprisonment: The case of IPP families’ and is a shortened version of a piece for the August edition of Inside Time (https://www.insidetime.org/):

The indeterminate Imprisonment for Public Protection (IPP) sentence has rightly been described as one of the least carefully planned and implemented pieces of legislation in the history of British sentencing. Readers of Inside Time will know that there continues to be a large number of people imprisoned on IPP sentences despite its abolition in 2012, either still serving their original sentence or having been recalled to prison. There have been a number of important reports examining the problems caused by the sentence, but the experiences of families of IPP prisoners has so far not been explored.

 

Our research ‘Exploring the Secondary Pains of Indeterminate Imprisonment: The case of IPP families’ has begun to fill this gap. We wanted to understand how families were affected by the IPP sentence; the support they may have received; and involvement in campaigns relating to the IPP sentence. In order to do this, we conducted in-depth interviews with 15 family members of IPP prisoners and received 119 responses to an online survey.

 

Our detailed findings will be published later in the year, but we can share some of the most important themes here. Overarching themes were injustice, uncertainty and hope. With the sentence having been abolished but no legislative action taken to address the existing IPP population, families understandably felt that this was an unjust situation. One respondent told us, “I feel bitter towards the justice system knowing worse crimes are committed with much lesser sentences”. Families also emphasised the difficulties created by the uncertainty of the open-ended sentence: this raised substantial emotional challenges, with many families feeling as if they were serving the sentence with their relative. As one family member put it, ‘The not knowing is the hardest part, we have no end date, no light at the end of the tunnel’. Unfortunately, but perhaps unsurprisingly, families reported that release brought its own difficulties. Some spoke of the constant fear of recall, of ‘living on the edge’.

 

The influential Farmer Review has recently made clear that the positive role to be played by families should be taken much more seriously by the criminal justice system. It is certainly the case that families can often give valuable support to an IPP prisoner’s progression. Unfortunately our research highlighted numerous practical challenges faced by families of IPP prisoners. These ranged from poor communication and inconsistencies in policies between prisons to a lack of contact due to distance. For example one respondent said that ‘The whole process of dealing with the prison service has been very inefficient and frustrating.’ Many families felt that probation should be doing a lot more to ensure progression towards release. Others spoke of long delays in the parole process, deferred hearings, and this all making a ‘really, really hard emotional journey’ even more difficult.

 

Many families put in a great deal of work to support their relative. While many family members are pleased that they can take action to help their relative, this does present challenges and put pressures on them. Some families told us that just having some recognition by relevant organisations (for example probation and parole) of their actions and how important they are would make a big difference to them. In addition to the work required of family members, the IPP sentence also often puts strain on family relationships. Many family members also reported serious health problems relating to the stresses and strains of the situation described above.

 

This research will provide further evidence to support arguments for additional legislative action to be taken in relation to IPP sentences. The majority of IPP prisoners are over tariff, and many have now served 3-4 times their tariff period. Proposals such as a ‘sunset clause’, where IPP prisoners cannot be imprisoned for longer than the maximum available sentence length for the offence committed, remain attractive. There are also steps that can, and should, be taken in relation to the licence period. Most obviously shortening its default length (from life); reducing the time from which a prisoner can apply for it to be lifted (from 10 years); and changing what happens when an IPP prisoner is recalled to prison (for example not returning them onto the original IPP sentence, or changing the release test for their subsequent parole hearing). Thankfully organisations like the Parole Board and the National Probation Service are increasingly aware of the important role played by families, and their need for advice and support. We hope that our research will help to move this agenda forwards and in particular ensure that the specific issues relating to IPP prisoners are addressed.

Dr Harry Annison, Dr Rachel Condry and Anna Leathem

Chay Clark is a third-year law student at Southampton Law School. She aspires to be a solicitor and has a particular interest in both employment law and intellectual property law. For Chay, the most interesting aspect of equality law is the gender pay gap which is the area in which she has chosen to focus her dissertation on.

 

Dress codes in the workplace: does the current law effectively protect from this type of discrimination?

In 2015 Nicola Thorp[1] petitioned the government to ‘make it illegal for a company to require women to wear high heels at work’ after being sent home for refusing to comply with her employer’s dress code. This sparked debate across the country, after the petition reached 150,000 signatures, as to whether the law effectively provides redress for dress code discrimination: leading to the House of Commons Petition Committee and Women and Equalities Committee launching a joint inquest.[2]

In response to the Committee’s report, the government[3] felt redress already existed under the Equality Act 2010[4] believing that ‘discrimination cannot be tackled by legislation alone instead changing attitudes and raising awareness is a crucial influence.’[5] The government[6] and ACAS[7] stated that dress codes do not need to be identical between the sexes but instead must not place an unequal burden upon one sex. However, whilst the Equality Act 2010[8] has provisions to protect against both direct and indirect sex discrimination, I doubt that they can be effective for dress codes.

This post assesses the current law and any barriers claimants face, particularly with reference to case law precedent; then moving onto the Committees report and whether their recommendations would provide re-dress for any imperfections in the law.

The Equality Act outlines direct discrimination stating, ‘a person discriminates against another if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’[9] The key problem in this provision is ‘less favourably.’ This requirement allows judicial discretion as there is no guidance on what amounts to less favourable treatment, especially when, dress codes are based on men and women’s inherent differences. This allows judges to set the standard for less favourable treatment, in my opinion, leading to the threshold being set too high.

The problems associated with a finding of ‘less favourable treatment’ can be illustrated from the leading case Smith v Safeway Plc.[10] In this case the Court of Appeal affirmed the reasoning of Phillip J in Schmidt[11] creating the precedent[12] to be followed in direct discrimination cases. The case concerned a delicatessen assistant who argued that his employer’s policy requiring men to have short hair was direct sex discrimination. The court stated that the correct approach to follow was the package approach Phillip J[13] laid down in Schmidt. He stated, firstly, that the whole code must be looked at in deciding less favourable treatment, not item by item separately. Secondly, a conventional standard of appearance can be applied by employers as men and women do not have the same dress codes due to inherent differences. Therefore, dress codes should be based on societal attitudes. Finally, the whole code must not treat one sex less favourably. Following this reasoning, the Court of Appeal concluded that the tribunal was correct in their finding of no discrimination, as by looking at the whole code there was no less favourable treatment towards men. This was subsequently followed in the case of Dansie,[14] whereby the tribunal also concluded that there was no discrimination as the whole dress code was gender neutral, as it merely required smart formal dress. This meant the claimant had not received less favourable treatment.

The ‘package approach’ not only allows for an additional defence for employers, when only a term of the code is discriminatory, but creates judicial discretion. Studies[15] have suggested that the approach of the courts ‘enables the facilitation of gender stereotyping that employers can reinforce.’ Whilst the law should be flexible, it should not give judges discretion to decide what is deemed an appropriate standard in society, especially when societal standards are continuously changing. This exemplifies how the current law is ineffective.

While these cases fell under the Sex Discrimination Act 1975[16], academic commentators[17] have criticised that the Equality Act has not changed direct discrimination requirements and Smith[18] is still the binding authority in this area. I believe these cases are strong illustrations that direct discrimination leads to an undesirable burden on claimants as less favourable treatment is difficult to objectively prove, especially when the whole code is considered rather than an individual term.

The Equality Act 2010 also prohibits indirect discrimination where, ‘a person discriminates against another if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’[19] Indirect discrimination is considered easier to prove because ‘the focus is on the impact rather than the treatment’[20] and there does not need to be a reason for the disadvantage.[21] One barrier of indirect discrimination claims is, however, that employers can justify discriminatory policies if they are a ‘proportionate means of achieving a legitimate aim.’[22] Regarding dress codes, there is a lack of case law surrounding indirect discrimination claims, meaning there is uncertainty as to what justifications would amount to a legitimate aim. This exemplifies the ineffectiveness of the law as it does not provide guidance on acceptable legitimate aims.

The Women’s and Equality Committee criticised both direct and indirect discrimination for placing barriers to successful claims.[23] Overall, they felt the law does not enable claims to be clear and straightforward. A key focus of the Committee’s report was analysing whether under the current law a requirement that women must wear make-up would constitute discrimination. Differing conclusions[24] were drawn about what type of discrimination, if any, this would amount to. The inconsistency in their conclusions demonstrates the unclarity surrounding whether certain dress codes amount to discrimination.

The Committee made two key recommendations[25] which I feel would address the laws current imperfections.

Firstly, they believe the requirement of less favourable treatment deters employees from bringing a claim as the law surrounding what amounts to this is uncertain. They suggested the test should be adapted to place weight on a subjective element of how the treatment made the claimant feel and a guideline produced of what constitutes less favourable treatment. This would ensure the threshold of less favourable treatment is not a barrier and removes judicial discretion, meaning judges would no longer be able to decide what is a conventional standard of appearance. In my view, this recommendation would be of great benefit because it would stop gender stereotypes from being reinforced by employers by conveying both a subjective and objective standard whilst keeping the law certain.

Secondly, the Committee suggested that cases under indirect discrimination would fail as employers can justify their policies by producing evidence of a legitimate aim. They felt that if there was a specific closed list of legitimate aims for dress codes this would ensure that employers could not justify discrimination easily. I feel that this recommendation would improve clarity, especially for lawyers advising clients on their claims.

The Committee found that ‘although the Equality Act is clear in principle, a range of evidence suggests that its application to individual cases is not straightforward.’[26] I support this conclusion as the variation of dress codes and the inherent differences between sexes make it impossible currently to determine the outcomes of individual cases. I believe that, by implementing the Committee’s recommendations, it would become clearer to both employers and employees what dress codes amount to discrimination in the workplace. Ultimately, the Committee found that Nicola Thorp’s treatment was not an isolated case, illustrating how the current law is not providing redress from discrimination.

On the whole, the current law is vague and unclear in what dress codes amount to discrimination, so introducing small changes could allow to identify and prevent dress code discrimination more easily. While the government responded positively to the Committee’s recommendations,[27] amending the Equality Act 2010 seems unlikely in the short run. Nevertheless, the Government Equalities Office published in May 2018 the Guidance: ´Dress codes and sex discrimination: what you need to know´, which is a welcomed small step forward.

 

 

[1] ‘Make it illegal for a company to require women to wear high heels at work’ (UK government and Parliament Petitions) (2015) <https://petition.parliament.uk/archived/petitions/129823> accessed 10th November 2017

[2] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25^th January 2017

[3] Government ‘First Special Report’ (Parliament Publications, 20^th April 2017) <https://publications.parliament.uk/pa/cm201617/cmselect/cmpetitions/1147/114702.htm> accessed 10^th November 2017

[4] Equality Act 2010

[5] Government ‘First Special Report’ (Parliament Publications, 20^th April 2017) <https://publications.parliament.uk/pa/cm201617/cmselect/cmpetitions/1147/114702.htm> accessed 10^th November 2017

[6] Government ‘First Special Report’ (Parliament Publications, 20^th April 2017) <https://publications.parliament.uk/pa/cm201617/cmselect/cmpetitions/1147/114702.htm> accessed 10^th November 2017

[7] ACAS, ‘Dress Code Advice’ (ACAS, 2016) <http://www.acas.org.uk/index.aspx?articleid=4953> accessed 10^th November 2017

[8] Equality Act 2010

[9] Equality Act 2010 S13(1)

[10] Smith v Safeway Plc [1996] EWCA Civ J0216-2

[11] Schmidt v Austicks Bookshops Ltd [1978] ICR 85

[12] Smith v Safeway Plc [1996] EWCA Civ J0216-2 13-14

[13] Schmidt v Austicks Bookshops Ltd [1978] ICR 85 (Phillip J)

[14] Dansie v The Commissioner of Police for the Metropolis [2009] UKEAT 0234_09_

[15] Dr Vandana Nath, Professor Stephen Bach and Dr Graeme Lockwood, ‘Dress codes and appearance at work: Body supplements, body modification and aesthetic labour’, (ACAS, August 2016) 16 <http://www.acas.org.uk/media/pdf/9/b/Acas_Dress_codes_and_appearance_at_work.pdf> accessed 10^th November 2017

[16] Sex Discrimination Act 1975

[17] Charles Pigott, ‘Code of Conduct’ (2016) New Law Journal 166 NLJ 7704, 10

[18] Smith v Safeway Plc [1996] EWCA Civ J0216-2

[19] Equality Act 2010 S19(1)

[20] Sandra Fredman, ‘The Reason Why: Unravelling Indirect Discrimination’, (2016) Industrial Law Journal, Volume 45, Issue 2

[21] (Respondent); Naeem (Appellant) v Secretary of State for Justice (Respondent) [2017] 1 WLR 1343, [2017] UKSC 27

[22] Equality Act 2010 S19(2)(D)

[23] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25^th January 2017

[24] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25^th January 2017

[25] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25^th January 2017

[26] House of Commons Petitions Committee and Women and Equalities Committee: High Heels and Workplace Dress Codes, First Joint Report of Session 2016–17, 25^th January 2017

[27] Government ‘First Special Report’ (Parliament Publications, 20^th April 2017) <https://publications.parliament.uk/pa/cm201617/cmselect/cmpetitions/1147/114702.htm> accessed 10^th November 2017