Employment tribunal fees pose an ‘obvious threat’ to the effectiveness of anti-discrimination law in challenging discriminatory dress codes such as those requiring women to wear high heels at work, MPs said today.
A report by the House of Commons petitions, and women and equalities committees, urges the government to substantially increase the penalties available to employment tribunals. However the report notes that the introduction of tribunal fees in 2013 has led to far fewer test cases being brought to build up a body of anti-discrimination law.
The report states: ‘This drop in employment tribunal claims poses an obvious threat to the effectiveness of anti-discrimination law. It is extremely important that a mechanism exists whereby test cases can be brought where employment tribunals may be otherwise unaffordable or unattractive for potential claimants.
‘The government must ensure that the Equality and Human Rights Commission is able to play an increased role in providing support and funding for anti-discrimination test cases and appeals brought before employment tribunals and courts.
‘The Women and Equalities Committee will want to maintain a watching brief in this area as part of its ongoing scrutiny of the work of the EHRC.’
Yesterday justice minister Oliver Heald told MPs that publication of the Ministry of Justice’s long-awaited review of tribunal fees was ‘imminent’.
The committees also suggest it might help if employment tribunals could use injunctions to provide an interim solution for claimants.
However, solicitor Nicholas Robertson, head of Mayer Brown's London employment group, questioned the feasibility of enabling tribunals to grant injunctions, warning that a breach has potentially significant consequences.
He told the Gazette: 'Taking just the issue of a requirement to wear high heels, what would an employer have to do if faced with such an injunction? Would the employer have to ban high heels, or could it tolerate high heels being worn?
'Would the employer have to get a consent form signed by a woman saying that it was a matter of her choice to wear high heels in the office?'
Robertson noted that tribunals already have the power in their decision to make recommendations to an employer if they find discriminatory dress codes exist, which can address the issue more widely.
He added: 'In practical terms employers are unlikely to ignore such a recommendation, particularly if an employer is ordered by the tribunal to make that recommendation known to those who might be similarly affected by the discriminatory code.'
The inquiry was prompted by a petition about requirements to wear high heels at work. However the report states that in the course of gathering evidence, MPs heard about other kinds of gendered dress codes.
‘We heard from women who had been required to dye their hair blonde, to wear revealing outfits and to constantly reapply make-up,’ the report states.
The committees also received evidence of the ‘extreme pain and suffering’ caused by wearing high heels for prolonged periods.
The report states: ‘Commenting on the web forum, members of the public repeatedly told us that their feet would bleed, that their feet would hurt so much that they were unable to walk or lead a normal life, and that some women required corrective surgery which left them out of work for extended periods.
‘We were even told that even in pregnancy women are not always excused high heels. We heard that the pain was so great that some women became unable to concentrate on the task in hand, putting them at a disadvantage compared to male colleagues in flat shoes, and that they dreaded going to work because of the pain.’
Commenting on dress codes in the workplace, Baker & McKenzie partner Julia Wilson said: 'Much depends on the surrounding circumstances. An instruction to women to wear high heels in an office environment isn't necessarily sex discrimination under current law.
'An instruction for a woman to wear a revealing outfit when a man has not been required to do the same clearly has greater potential to be sex discrimination. If MPs want clear rules and fines for companies in relation to dress code practices, that is likely to require a change in the law.'