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

A blog post written by final year student Emma Ship has been named as one of the three best pieces of summative coursework for the module ‘Equality at Work’. 

Module leader, Sara Benedi Lahuerta, said of Emma’s work “Emma’s essay is well-written, it provides good critical and personal insights, and arguments are well-supported with academic references and examples”.

Read Emma’s essay below

Can Immutability be Used to Justify the Protected Characteristics Under the Equality Act 2010?

The Equality Act 2010 provides nine characteristics, which must be protected under anti-discrimination laws in the workplace.[1] It is widely accepted by the judgment of society that these characteristics are deserving of legal protection. It is not often questioned why these particular grounds have protection when others, such as political opinion, do not. This blog post will be discussing whether the concept of immutability can be used to justify the current protected characteristics. In particular, there will be a focus on religion/belief and sexual orientation as they are arguably the most difficult characteristics to which immutability can be applied.

What is Immutability?

The criterion of immutability has historically been the “lynchpin upon which a restricted regime is based”[2] and has been recognised as a justifying principle of protecting certain characteristics by both the UK and European courts.[3] Immutability is the idea that characteristics should be protected under anti-discrimination laws if they are unchangeable and not chosen.[4] Therefore, the permanence of these characteristics and the fact they are outside the control of the individual means they need to be protected from societal prejudice.[5] For example, characteristics which can clearly be justified by the principle of immutability are race[6] and age[7] which cannot be changed and are not within the individual’s control.

It has been argued that anti-discrimination laws will only be viewed as politically legitimate if its aim is to protect individuals from discrimination arising from something which they have no control over and is very difficult to change.[8] At first glance of the protected characteristics, I would be inclined to agree with this argument. However, when looking in detail at characteristics such as religion it becomes clear that immutability may not be so easily applied.

Can Immutability Justify Protecting Religion and Belief?

Religion/belief is a characteristic which is protected by legislation[9] but is difficult to fit in with the criterion of being immutable. In the case of Eweida v British Airways, Sedley J stated that all of the protected characteristics apart from religion and belief are “objective characteristics of individuals; religion and belief alone are matters of choice”. [10]  Therefore, as it has been recognised by the courts that religion is a matter of choice, it could be argued that its place within the Equality Act 2010 is misguided. An individual’s religion and beliefs can change throughout their lives and, therefore, lack consistency meaning that it may not be a characteristic which could be claimed to be immutable.

Religion/beliefs could also arguably fail the immutability criterion because, unlike race and sex which are established at birth, religion may be something which is instead learnt.[11] It may be analogous to characteristics like political opinion which can adjust due to a change in an individual’s circumstances, current affairs and the effect friends and family have upon them.

However, I would argue that what Sedley J fails to consider in his brief discussion on the lack of immutability in relation to religion in Eweida,[12] is the circumstances in which it could be argued that an individual lacks choice. I believe it is necessary to recognise the assertion that religion may sometimes be arguably out of an individual’s control, especially when considering “the dynamic interplay between various social and cultural pressures in the lives of many individuals”.[13]

After considering both the arguments for and against viewing religion/belief as an immutable characteristic I would argue that the stronger assertion is that religion cannot be justified by the criterion of immutability. Although social, cultural and other pressures may lead to an individual perhaps lacking the freedom to make a completely autonomous choice regarding their religion, to denominate this as an immutable characteristic may undermine others, such as race, where there is a complete absence of choice. It may lead to the possibility of opening the floodgates to allow other factors to be included under the Equality Act[14] which may in turn destabilise the significance of the current characteristics. This begs one to ask the question of whether it should be included within the Equality Act 2010 and, if it should, what principle can be used to justify it.

Can Immutability Justify Protecting Sexual Orientation?

Sexual orientation is also protected by UK legislation[15] but academics have controversially debated the possibility that immutability does not apply to it.[16] Although it is arguable that sexual orientation is not a characteristic that can be chosen or changed, it has been contended that, as there is not a way to prove the existence and immutability of an attraction through scientific measurement (like the way someone’s sex can be established), scientists are unable to conclusively preclude that there is individual choice to sexual orientation.[17]

Academics, including John Gardner, have claimed that the “orientation of our sexual attraction, like our religious faith, might of course change through dramatically life-transforming experiences such as trauma, conversion or brainwashing”.[18] Also, Wintemute has stated that there are few homosexual men who have succeeded in changing to become heterosexual which suggests that although minute, there is still a possibility of change.[19]

However, I believe that sexual orientation is an immutable characteristic which cannot be changed due to the complete lack of supporting evidence and the fact it is just an a priori assumption. In response to Wintemute’s claim that some men have changed their sexuality, we should consider stigmatisation and the fact that homosexuality was illegal until 1967 in the UK.[20] Therefore, up until 1967, instead of actually changing their sexuality, those individuals were responding to society’s norms and pressures and thus felt compelled to appear heterosexual in order to be accepted. Although homosexuality has been legal ever since, the fact that same sex marriage was only legalised in 2014[21] demonstrates that homosexual couples have only just received equal rights. Therefore, until very recently, same sex couples may have – and possibly still do – face stigmatism in everyday life and thus may feel unable to live how they truly desire.

What are the Alternative Justifications?

After considering the application of immutability to religion/beliefs and sexual orientation, I would conclude that religion cannot be justified by immutability, but sexual orientation can. Also, other protected characteristics such as pregnancy[22] and marriage/civil partnership[23] may be a choice and within the individual’s control. However, to omit to protect individuals from discrimination at the workplace based on these grounds appears unjust.

Therefore, perhaps the protected characteristics can be better justified by other principles such as it being a fundamental choice of that individual. It has been stated by academics that it is arguable the protected characteristics are not immutable, but “simply manifestations of a fundamental choice exercised by an individual” which warrants protection.[24] A fundamental choice is something that everyone should have the right to make unconstrained from outside interference.[25] It is linked to concepts such as personal autonomy and dignity and is associated with an individual’s sense of identity.[26] For example, a choice regarding one’s own sexuality may be fundamental to their identity.[27] Alternatively, it could be argued that we should avoid a grounds based idea altogether in recreating a legal approach to discrimination as was suggested in a dissenting judgment in Egan v Canada.[28]

 

Conclusion

To conclude, I would argue that sexual orientation can be justified by immutability and religion/belief cannot. Although immutability sometimes appears to be a sound justification for why certain characteristics, such as race, are protected, when one looks deeper into the matter it is revealed that immutability may be flawed as a way of looking at anti-discrimination laws. The fact that religion/belief cannot be rationalised by immutability demonstrates that perhaps immutability has been misplaced as a criterion which can be used to justify the protected characteristics. Assuming that the nine grounds of protected characteristics are deserving of legal protection, as immutability falls short, perhaps they will be better justified by other principles such as them being a fundamental choice to that individual.

 

Tags:

#Immutability #Protected Characteristics #Religion and Belief #Sexual Orientation #Justification

 

 

[1] Equality Act 2010, s4.

[2] D Cabrelli, Employment Law in Context. Text and Materials (2^nd ed, OUP 2016) 415.

[3] For example R (Age UK) v Secretary of State for Business, Innovation and Skills [2010] ICR 260, 297C-E: Blake J and Case C-236/09 Association belge des Consommateurs Test-Achats ASBL and Others v Conseil des Ministres ECLI:EU:C:2011:100 [50].

[4] D Cabrelli, Employment Law in Context. Text and Materials (2^nd ed, OUP 2016) 415.

[5] A McColgan, Discrimination, Equality and the Law (Hart 2014) 53.

[6] Equality Act 2010, s9.

[7] Equality Act 2010, s5.

[8] I. Solanke, ‘Infusing the Silos in the Equality Act 2010 with Synergy’ (2011) 40(4) Industrial Law Journal 336, 349, accessed 14^th November 2017.

[9] Equality Act 2010, s10.

[10] Eweida v British Airways plc [2010] ICR 890, 901F.

[11] Jessica A Clarke, ‘Against Immutability’ (2015) 125 Yale LJ 2, 103, 31.

[12] Eweida v British Airways plc [2010] ICR 890, 901F.

[13] D Cabrelli, Employment Law in Context. Text and Materials (2^nd ed, OUP 2016) page 418.

[14] Equality Act 2010.

[15] Equality Act 2010, s12.

[16] For example, R. Wintemute, Sexual Orientation and Human Rights Framework (Oxford, Clarendon Press/OUP, 1997) 174-6 and J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 172.

[17] R. Wintemute, Sexual Orientation and Human Rights Framework (Oxford, Clarendon Press/OUP, 1997) 174-6.

[18] J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 172.

[19] R. Wintemute, Sexual Orientation and Human Rights Framework (Oxford, Clarendon Press/OUP, 1997) 174–6

[20] Sexual Offences Act 1967.

[21] Marriage (Same Sex Couples) Act 2013.

[22] Equality Act 2010, s18.

[23] Equality Act 2010, s8.

[24] J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 172.

[25] D Cabrelli, Employment Law in Context. Text and Materials (2^nd ed, OUP 2016) 418.

[26] D Cabrelli, Employment Law in Context. Text and Materials (2^nd ed, OUP 2016) 418.

[27] J. Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167, 173.

[28] Egan v Canada [1995] 2 SCR 513.

Courtside action for law students

Professor Sarah Nield’s article, co-authored with Professor Sue Bright and Professor Sarah Blandy, and entitled ‘The Dynamics of Enduring Property Relations’ will be published in the January issue of the Modern Law Review.  Since its foundation over seventy years ago, The Modern Law Review has been providing a unique forum for the critical examination of contemporary legal issues and of the law as it functions in society. The Review today stands as one of Europe’s leading scholarly journals.

The article proposes a new way of looking at consensual property relationships in land that recognises both the temporal and spatial dimensions of land. The dynamics approach reflects the fact that most property relationships are lived relationships, affected by changing patterns and understandings of spatial use, relationship needs, economic realities, opportunities, technical innovations, and so on. Although evolving responsively to accommodate changing uses and new rights-holders, these relationships are nevertheless sustained and enduring. The dynamics lens acknowledges the diverse range of legal, regulatory, social and commercial norms that shape property relations and explores how far the enduring, yet dynamic, nature of property relations is taken into account by a range of decision-makers.

Further details are available at http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1468-2230.”

Intellectual property undergraduate students took part in a contest organised by their lecturer, Dr Eleonora Rosati(Associate Professor in IP law) which consisted of analyzing a recent High Court decision on copyright protection for TV formats.

Three LLB finalists received prizes for their efforts: Diane Pham-Minh will have her piece published as a Current Intelligence note on the Journal of Intellectual Property Law & Practice (Oxford University Press, edited by Dr Rosati); Paul Musa had his piece published on specialist copyright blog The 1709 Blog; and Sebastian Vogg had his piece published on the official Southampton Law School Blog.

Student Paul Musa said of this opportunity: “The contest enabled me to improve my analytical and researching skills. I particularly enjoyed examining the practical significance of this case, as it is going to have a huge effect on how the media industry operates”.

Sebastian Vogg, who was published on this blog, said: “As an exchange student, joining the IP writing contest was a very important experience for me because I learned to express myself more precisely and I made a big progress in using and understanding the legal sources of this country. That my article got published gives me a lot of confidence for my next challenges”.

Diane Pham-Minh said “I enjoyed analysing this case as I had previously studied the “Green” case, which formed the basis for this decision, when I was on my year abroad in Singapore. It was really exciting to see how the law has evolved, to actually write about it and later be published in the Journal of Intellectual Property Law & Practice.”

 

Dear readers,

I would like to give you a warm welcome to our new Law School Blog, written by Southampton Law School academics and students. It is intended as a place where the latest news can be shared and ideas exchanged with anyone interested in legal developments and the work undertaken at Southampton.

The blog will serve as a forum of more informal discussions for the high-quality work of our staff and students: feel free to comment, get in touch, and be part of our vibrant community!

Yours,

Professor Brenda Hannigan
Head of School and Professor of Corporate Law
Southampton Law School.