Sexual discrimination in the workplace

July 28, 2016

Does a business owner have the right to refuse work to an employee as a result of questioning a change in uniform?

Sexual discrimination is a live issue and a risk for employers when thinking about what is an appropriate dress code. Debate over discrimination at work has been a large focus within the news recently; especially given the case involving Erin Sandilands, an 18 year old waitress, who was refused work after she complained after being asked to wear more makeup, her hair down and a skirt to work. She was told this would make her ‘easy on the eye to customers’. Ms Sandiland felt that she had been discriminated against, after consulting with her father who is an employment law solicitor.

Another discrimination case within the news which links largely to Ms Sandilands’s case is that of Nicola Thorp, who was sent home from her receptionist job in London after refusing to wear high heels. Nicola argued she should not be made to wear heels given male employees were not required to wear them. Nicola was sent home without pay.

Background

Erin Sandiland an 18 year old from Ayrshire; started working on a zero hour contract for the Italian Restaurant, ‘ecchini’s Bistro’ in September 2015, when she was initially told that the dress code for staff members was black trousers or a skirt with a black shirt. However, after a month of employment she was approached by her manager in a hallway and asked to start wearing a skirt instead of trousers and to wear her hair down along with makeup, in order to make her more attractive to customers.

Ms Sandiland went on to question her manager on what difference it would make to her duties, pointing out that it would be more hygienic if she continued to wear her hair up at work. Her manager did not reply to her questioning, and instead called her the next day to tell her that her services will no longer be required; despite the restaurant entering into a busy period.

Ms Sandiland explained how unnecessary the situation was and she felt ‘utterly humiliated and upset’ that she should wear more makeup and wear a skirt to make her appear more attractive and feminine to the customers.

The Outcome

Judgement was given in favour of Ms Sandiland as it was decided she had been discriminated against on the basis of sex.

Erin Sandiland won approximately £3,500 in compensation. Ms Sandiland explains how the incident has damaged her emotional wellbeing she now feels ‘uneasy’ if she does not wear makeup or a skirt in her new job.

The owner of the restaurant insists that the allegations that have been made within the tribunal are untrue and they intend to appeal this decision.

This case provides interesting considerations for business owners in advising them on issues relating to dress code.

What does this mean for employers?

We keep seeing cases like this cropping up in the media following claims brought against the big players as well as the small ones.

Employers must ensure that if they are going to employ a dress code, it is based on consistency and parity for both male and females. Whilst it is perfectly fine to be image and brand focussed, this can sometimes be to the detriment of the employer if not executed and communicated properly so having a clear and consistent message that all managers and employees are aware of will assist to avoid liability.