Short Skirts, High Heels and Special Treatment on Mat Leave – What Constitutes Sex Discrimination at Work?.

The BBC reported last week on a Russian company who ran a “femininity marathon” campaign, offering female employees cash bonuses to wear skirts or dresses which are no longer than 5cm below the knee to work, in order to “brighten up” the work day for the 70% male team.

This echoes the 2016 story of a receptionist who was outsourced by Portico to PwC, for which they provided reception services. Nicola Thorp was sent home without pay for refusing to wear heels for her 9 hour shift, in accordance with Portico’s dress code.

Nicola launched a petition against the requirement to wear heels at work which received 152,420 signatures. The Government response was that, in accordance with the Equality Act 2010, any dress code set by an employer must be reasonable and must make equivalent requirements for men and women.

Where a dress code is found to put someone with a protected characteristic (such as being female) at a particular disadvantage, it would constitute indirect discrimination. Wearing heels for prolonged periods can cause health issues for women such as bunions, back problems, ankle sprains and tight calves and so requiring women to wear heels at work is likely to be discriminatory on the basis of sex.

On a separate issue, there have also been two recent cases brought by male employees claiming sex discrimination in relation to parental leave.

Derek Rotondo was involved in bringing a class action in the USA against JP Morgan on behalf of fathers who claimed they were denied access to paid parental leave on the same terms as mothers. The company’s policy only permitted fathers to be deemed the primary care giver where the mother had medical limitations on her ability to care for the child, which Mr Rotondo’s wife did not. JP Morgan have now settled the case and have adopted a gender-neutral parental leave policy.

Back in UK, the Court of Appeal have just determined in the conjoined cases of Ali & Hextall that it is not direct or indirect sex discrimination, nor a breach of the implied equal pay sex equality clause into a contract of employment, to pay female employees enhanced maternity pay (EMP) but not pay male employees an equivalent enhanced amount on shared parental leave (SPL). It was found that EMP was a lawful more favourable term related to the special treatment of mothers in connection with pregnancy and childbirth, which is protected under the Equality Act 2010 and is not comparable to men on SPL, nor comparable to female employees taking SPL which is unconnected to pregnancy or childbirth, who would be paid the same as a male on SPL. Employers can therefore rest assured that female employees are entitled to special treatment connected to pregnancy or childbirth such as enhanced pay on maternity leave, but just don’t require them to wear heels or short skirts when they return to work!

The contents of this newsletter are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this newsletter. © Mundays LLP

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