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Lippy and heels or out

25 May 2016

Nicola Thorpe was employed as a temp worker by PWC's London office in reception.

When she arrived on her first day, she was told she had to wear shoes with a 5cm to 13cm heel as a matter of policy. Thorpe refused arguing that the demand was discriminatory. She was sent home without pay after refusing to buy a pair of heels.

Thorpe was clearly incensed and she argued that the height of her heels had no impact on her work.

Since the parting she launched a petition calling for the law to be changed so companies could no longer force woman to wear high heels to work. A recent report said she already had over 11,000 signatures.

Portico, the temping agency Nicola was employed through, says they are reviewing their guidelines in consultation with their clients and staff. A bit too late for Nicola Thorpe however.

We can all think of examples of employees required to wear uniforms. We see them every day about us.

Obvious examples are police officers and air hostesses, but corporate offices also impose dress standards.

Employers are entitled to set a dress code for their employees and to enforce it. Normally it would be part of the contract of employment that people signed up for, but can also be implemented through internal policy.

However, where women are being exploited because of their sex appeal, a boundary is crossed. The Nicola Thorpe case no doubt raises such concerns.

In the early 2000's a high profile English case involved Carina Coleman, a London City investment banker.

Coleman alleged that her employer described her as a "tethered goat", a reference to her being utilised as sexual bait for wealthy clients. She won her case of unfair dismissal but lost on the more serious claim of sexual harassment.

The bank involved and the man accused of sexually harassing Coleman were granted name suppression.

While discrimination based on sex is clearly prohibited in New Zealand's Human Rights Act, what particularly is caught by this term remains, for the most part, untested.

In New Zealand, a case brought by Melissa Williams against Kimberlys Fashions touched on some of these issues.

Williams was required to wear facial make up, but objected on the grounds that the foundation had a bad reaction with her skin.

She asserted "it was no longer the 1950s" and woman should be able to choose whether or not to wear make up at work.

The court accepted that Williams' psychological well-being was badly affected by the employers "make up" requirement.

Williams argued that her case was a test case; an opportunity for the court to consider what is meant by sex discrimination. However, the court expressed its preference to resolve the issues "simply" on a contractual basis.

Williams won. The court held that it was not a contractual condition that she use facial make up. The court also found that despite the employer's attempt to require make up as part of the "house rules", there was no evidence this was properly communicated to Williams.

Interestingly the court held that the employer breached its duty "not to act in a manner calculated to destroy or seriously damage the employment relationship."

This breach formed one of the 'major factors' that contributed to the success of the complainant's alternative claim of constructive dismissal.

There is a lack of clarity legally around this issue. I expect that women in the future will increasingly try to use the Human Rights legislation prohibiting sex discrimination for cases such as these.

Readers will no doubt have their own view on the need for attractive attire in certain occupations on the one hand and crossing the boundary line and exploiting a person's sex on the other.

Expect a lot more litigation in this space. Anger fuels litigation

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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