Blog: The Dress Code Strikes Back

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

A couple of months ago I blogged about Nicola Thorp, the agency receptionist who left a placement at PWC rather than wear high heels. Last week (whilst desperately seeking some news that wasn’t related to Brexit or party leadership contests) I came across an article in the Scottish press about Erin Sandilands, an 18 year-old waitress from Ayrshire who has just been awarded £3,500 for sex discrimination.

In contrast to Ms Thorp’s case, the dress code for Cecchini’s Bistro was not overtly problematic – she was required to wear a black skirt or trousers and a black shirt. However, despite complying with the code, she told the Employment Tribunal that she had been ‘taken aside’ by a manager and asked to start wearing a skirt instead of trousers, to wear her hair down and to use more make-up “for the punters.” Having questioned this, she received a call to say that she would not be offered any more shifts; a move that was contractually legitimate given her zero-hours contract.

Tellingly, the article in The Herald reveals that her father’s partner is an employment lawyer. I would hazard a guess that the teenager’s family probably also supported her in paying the £1,200 it would have cost her to bring the Tribunal claim, although Cecchini’s would have been ordered to reimburse this as part of the judgment against them. Furthermore, it’s not everyone who can afford to take the risk of losing their income to stand up for their principles. Would she have felt able to object – never mind bring her claim – as a single mum?

For anyone who knows a bit about discrimination law and has ever thought ‘but how do they get away with that?’ in relation to the everyday sexism (and other forms of discrimination) that we often see or hear about, there are a few observations that I’d like to share.

  1. Our anti-discrimination laws are ‘fit for purpose’.  Over 40 years we have evolved a regime that can provide redress for subtle and not-so-subtle discrimination, along with a talented cohort of judges and lay ET members who apply it with common sense and healthy scepticism. Of course, they don’t get it right all of the time but, taken as a whole, it’s a Very Good Thing.
  2. In contrast, access to that legal system is absolutely not fit for purpose, a problem that is compounded by the increasing casualisation of the labour market. This restaurant, and thousands of places like it, operate on the basis that their employees can’t or won’t challenge them. Ms Sandilands’ very particular set of circumstances meant that they called it wrong in this instance, but in most cases it’s a safe bet.

I’d suggest that, as ‘insiders’, employment lawyers and HR professionals should be doing what we can to promote and protect what’s good about our current anti-discrimination framework, and to fight for better access to justice, particularly for those with claims of low financial value. Brexit (sorry, I’ve just put a quid in the ‘don’t talk about politics’ box) will involve the throwing out of a lot of bath water, we should make sure our substantive discrimination law is not one the babies that goes with it.

Even if the grievances or claims that you tend to get are often spurious, cases like this are a good reminder of why dealing with that sort of claim is a price worth paying for a system which protects us all and which, over 40 years, has contributed greatly to making our society more equal, more tolerant and ultimately less likely to exploit a reluctant 18 year-old to sell a plate of lasagne.

Joanne Sefton, Specialist Employment Lawyer at Menzies Law