Kerry Norval writes about the recent controversy surrounding a woman who was sent home from work because of her footwear and asks whether existing provisions already give employees a right of redress.

The media has been awash with reports that a woman, who had turned up for her first day working as a receptionist at PWC’s office in London, had been sent home for failing to wear the correct shoes at work. The individual – who had been recruited by staffing agency Portico – had not adhered to Portico’s dress code, which allegedly required women to wear shoes with heels of between 2 and 4 inches and wear at least five different types of make-up, amongst other requirements.

The story sparked a debate among me and my female colleagues as we boarded a plane to London. Of the six of us present, five of us were wearing flat shoes with heels in our bag to change into (out of choice I hasten to add). The irony was not lost on us.

The story resulted in a petition to make it illegal for an employer to require women to wear high heels at work. The petition received almost 110,000 signatures in less than 48 hours. As such, the issue will be debated in the UK Parliament. However, I couldn’t help but wonder whether a change in law was strictly required, or whether the current discriminatory framework would already give employees in similar situations a right of redress.

In order for a woman to be able to successfully raise a claim of direct discrimination, i) she must have been treated less favourably than a male counterpart; and ii) the treatment must have been because of her sex.

You might think that a dress code which stipulates different requirements for different sexes would, on the face of it, fall foul of the legislation. However, the position is not that straightforward.

To date, case law on the matter of dress codes has decided that the correct approach is not to compare which specific items men and women are required to wear or not wear, but rather assess the overall effect of the dress code. In other words, when confronted with this question, judges have decided that it is alright to treat men and women differently provided that no sex is worse off - for example, if both sexes are required to conform to social norms or conventional ideas about smartness. As a result, much will depend upon context – what is acceptable in one workplace may not be in another.

The difficulty with convention, however, is that it relates to the way in which something is usually done or has always been done. It is not progressive and runs the risk of actually augmenting gender stereotypes. This is potentially at odds with one of the fundamental objectives of sex discrimination legislation, which is to prevent unequal treatment of the sexes arising from conventional attitudes. Arguably the idea that women should be required to wear heels – particularly those over a certain height – says less about ideas of ‘smartness’ than it does about how women are often viewed in the workplace.

Part of the reason claims about dress codes have not always succeeded is due to the difficulties claimants have in establishing that different treatment equated to less favourable treatment i.e. the first test noted above. As far as I am aware, the specific question of a requirement to wear high heels (particularly those of a certain height) has not been tested in the courts. Discrimination cases inevitably turn on their facts. This is in recognition of the fact that it is not possible to legislate for every scenario – there has to be a degree of leeway. However, given the well established adverse health implications that heel-wearing brings, in my opinion an employee in a similar situation could well show that she had suffered a detriment amounting to less favourable treatment – compared with men – and be successful with her claim.

It will be interesting to see what Parliament decides on this particular issue. However, at least being forced to address the matter and have the debate is a step in the right direction.