Monthly Archives: June 2011

Too hot to handle?

I think I am a grown up, and able to decide for myself what to wear to work (and what not to wear).   I don’t really like to be told.  Recent walks by women all over the world under the banner of Slut Walks (http://en.wikipedia.org/wiki/SlutWalk) got me thinking about how we seek to control what women (and men) wear.

A  burka ban (http://www.telegraph.co.uk/news/worldnews/europe/france/8442622/French-burka-ban-police-arrest-two-veiled-women.html) can seem ‘Unbritish , unless there is a real need to see a woman’s face (teaching or giving evidence in court for example).

But a crucifix ban (http://www.timesonline.co.uk/tol/comment/faith/article7089691.ece) can be lawful if  necessary for Health and Safety.  But British Airways famously ran into trouble when allowing the headscarf and prohibiting the wearing of a visible crucifix.

German bosses have persuaded the EU that they have the right to require women to wear bras to work (http://www.dailymail.co.uk/news/article-1346520/Court-rules-German-bosses-order-women-wear-bras-work.html). Perhaps that was another ‘safety’ issue!.   We have yet to see men demanding equal treatment in that regard.  A ‘bring your under wiring to work’ day is not the most likely equal opportunity event in a workplace near you.

To what extent is it an employer’s business what employees wear to work? 

Are dress codes a legitimate imposition of image and standards, or is this a load of white middle-aged people trying to impose their standards of dress on everyone else?   Do your customers really mind what your staff wear?  If they do, do customers’ ideas of proper clothing match yours?

Our professional practice had a credit controller decades ago who looked like a zombie/goth:  black hair, black nails, black lips, she certainly didn’t match the corporate image.    She had a mostly desk-based job, and we decided to put our conservative instincts aside and give her the job, as she plainly was the best candidate for the role.

From time to time she went to clients’ offices to sit in reception and wait for a cheque.  She always got one quickly – people couldn’t get her out of their plush front office fast enough.

She looked different.  She was different.  But she was completely effective in her role.

The customer is not always right

Years ago, managers told me “customers don’t like black people” or “customers don’t like obviously gay people”.  The law steamed right past that, and no-one would seriously rely on such reasoning today.

Some Muslim women get stick from stricter Muslim customers if they don’t cover up enough.     Should we be requiring them to wear the niqab because that is what some customers want (if they do), or should we be supporting their right to wear what they want?

Is it right to assume that customers are automatically put off by people who look different to them?    When I started work it was ‘business suits’ only, and women were not allowed to wear trousers to work.    When I was at school, the uniform rules extended to underwear, and we had inspections!  We have come a long way.

Does it offend me if the coffee shop person has dreadlocks and piercings?  Not nearly as much as surly service.

I don’t care what they wear, but I do care how I am treated.

There is a segment of the population that finds it hard to deal with people who are not in business suits,but often it is the senior directors who object to how someone dresses, not the customers, and there is no customer profiling or research to support their point of view.

The real issue for many customers is not what people wear, but whether they can understand what your staff are saying!

It is often far more important to have a conversation with your staff than admire their outfit.

I once had a client who took great pride in how informal people were in their organisation and how everybody could wear what they wanted.   Even torn jeans were acceptable.   Every time I turned up at their offices (about once a month) I was told, “no need to wear suits for us”.  Eventually I got the hint, and went out and bought a pair of torn jeans – just for them.  Next time I visited they said “It is wonderful you feel relaxed enough with us to wear what you want”!

Who’s in charge here?

“But it’s my company, what do you mean I can’t control who wears what?”    The boss’s right to lay down standards of dress is constrained by equality law, and s/he who pays the piper cannot call any tune they feel like.

If an outfit (or accessory) is genuinely dangerous (or a hygiene problem in the food or medical sector), it may be legitimate to ask staff not to wear it.  There might be other ways around the difficulty – wearing medical tape over a stud, for example.   Surely banning should be the last option once alternatives have been explored, not the first?

Providing a staff uniform can be useful.  I have worked with IT companies who give their technicians sweat shirts so they can easily be identified on clients’ sites (and asked for help).  They often specify that everyone wear trousers since women crawling around under desks in micro minis tend to attract the wrong kind of attention.    So far I have not heard of a woman IT worker (or man) objecting to that rule.

Security workers, medical workers, police and the armed forces all wear uniforms in environments where it is really important to be able quickly and easily to identify who is who and what their  job function is.  In a world of email and telephone call centres, these physical signals are invisible and arguably irrelevant.

But although you may well have a ‘legitimate aim’ in setting standards, you may  also have to justify how you apply it.  The Catholic school that banned boys from wearing their hair in ‘cornrows’ persuaded the High Court that their policy of requiring conventional standards of appearance was legitimate, but their inflexible application of their policy produced a detriment for particular racial groups and could not be justified. (http://www.bbc.co.uk/news/uk-england-london-13803106)

Sexual harassment/religious issues

What about a workplace without rules?  If everyone wears what they want, then other problems can arise.  I was talking to a University Lecturer recently who remarked that his female students were attending his workshops during hot weather in micro shorts and a top smaller than a bra.   “I often work closely with my students at the computer desk, moving the mouse to show them where to click.  When they come to class half naked, I worry that I will be accused of sexual harassment if I get too close to them, or look down at the wrong moment.  I feel sexually harassed by what these young women wear”.

Should we have a rule “If you don’t want it looked at or talked about, put it away”?  The Slut Walkers are right to the extent that women should be free to wear what they want without fear of assault, but is it reasonable to go to work half clothed and expect no-one to notice or say anything?  Would it be OK for a man to go to the office in shorts and sandals and nothing else?

The modern workplace includes everything from Sikhs who need turbans and bangles and knives, to women who wear hardly anything, or women in the niqab or burka.   We have teenage Goths, eco warriors and men and women in suits.

Are we going to try to stem the tide of diversity and require everyone to look the same?

Is what I wear to go to work going to be driven by religious sensibilities of religions I am not a member of?  Are we going to go for a common look but allow wide variation?   Or are we going to let everyone do their thing?

Meanwhile, have a look at your own dress code/policy at work.  Is all that stuff really necessary?  If I put you on the witness stand today, could you make a real case for how your business really needs all this? 

If I did put you on the witness stand with my hair dyed pink, would it make me more or less of a dangerous adversary or effective friend?

I have always wanted to dye my hair pink.   Given my line of work, and the fact I do spend a lot of time with clients (and in tribunal), I felt it was not appropriate and I have not yet done it.   Nobody told me not to, nobody required me not to.  It was my decision.  When I get to the age of 70 (which by my calculation is my most likely retirement age given how things are going) I will celebrate by dyeing my hair pink … or do you think I should do it now?

Talk to us about your dress and uniform policy.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

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Filed under discrimination, employment law, uniform and dress codes

Red tape and fairness

This is the fifth in our series of blogs about the ‘Red Tape Reduction’ consultation.  In this blog, we look at ideas about what is fair

You don’t have to spend more than 30 years in employee relations and employment law to work out that there is more than one idea about what is ’fair’.   When we call upon the government to produce legislation that is ‘fair’, or even ‘fairer’, we are really being a little disingenuous unless we define what we mean.

Historic  fairness?

To a woman trying to get on the board who suspects her gender is an issue, fairness means getting a real shot at an open door.  Business women are divided over the issue of quotas and there is no agreement about whether quotas are fair or not.

Is fairness about remedying historic discrimination, or is it about what is happening now?

Simplicity and clarity?

To the small business owner, fairness means being able to run their business without being burdened by complicated rules.

Is fairness always simple, or can we be simple and unfair?

Consistency?

We all get irritated by reports in the press that show one criminal getting a fine where another for the same offence gets a prison sentence.  To us, consistency is part of fairness.

Some people find it offensive that soldiers injured in the line of duty get lower compensation than a woman who is not promoted because of her gender.

We all have some underlying idea of a scale or tariff, but we don’t necessarily agree about relative worth.

Relevant circumstances?

When we are on the receiving end of any kind of penalty, we do not demand that a strict tariff is blindly applied.  On the contrary, our idea of justice and fairness then includes the idea that our circumstances, even our intentions, must be taken into account.

  • The drunk driver begs not to go to jail for killing a child – “I didn’t mean it, I am sorry”
  •  The negligent manager does not want to take the  blame for injuries at work –  “We didn’t have enough resources, I was working long hours”.
  • We can feel that “I am not the only one to blame” is something that means we should not get any blame at all (as opposed to everyone involved taking their share).

We need to decide what the ‘fairness mix’ is before we start demanding more of it.  

Do you want to go for:

  1.  Standardisation/set tariffs/penalties – where everything is predictable; or
  2.  Appropriate decisions/penalties – which means there is an element of unpredictability and inconsistency

This is a dynamic tension in our entire legal system, not just employment law, between the two ideas of fairness. 

  • should people who are often late for work be treated the same, regardless of reason?
  • should there be special consideration for the disabled, for those who live on a dodgy bus route, or have small children, or
  • should it always be “three strikes and you’re out”?

If you believe in fixed penalties regardless of circumstances, you have a system that is consistent (but not necessarily fair on those who can’t comply).

Which would you rather be on the receiving end of?

We try in the UK to have it both ways.  It is the essence of our society … this compromise, this balance, this wobble … and it is what the media complain about all the time.

Why did that person get six months and that person one?

Why did that employer win a tribunal and that one lose?

What kind of world do we want to live in? 

If we can work out that, we can work out what kind of legal system we need to support it.   But we must be realistic.  Any system of legal rules and processes has some inherent problems, because:

  • people write the laws (with varying degrees of drafting skills!),
  • people try to explain the laws (with very mixed success),
  • people try to comply with the law (and others pay no attention whatsoever) and
  • people try to interpret the law when cases come to tribunal or court.

Sometimes we act like children, complaining when Daddy makes a decision we don’t like.  But we are adults in a society that needs to make adult assessments about what it values, what it penalises, what it sanctions, and how it judges those issues.

The boss who today wants a streamlined tribunal system and no uncertainty may be the drunk driver tomorrow wanting their life and record and all mitigating circumstances taken into account.

The price of “society” is accepting that there is more than one point of view.  It is not such a simple job to make things ‘fairer’ but we could start by acknowledging that there are competing standpoints.

For our earlier blogs in the ‘red tape’ series, click here  for our discussion on whether we are over-regulated, and click here for our discussion on how far we can repeal current legislation , click here for the third blog for our discussion on how government guidance notes affect us and click here for our fourth blog  where we look at the opportunity to simplify legislation

See our  previous blog

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk

You can follow Annabel on Twitter

3 Comments

Filed under discipline and dismissal, employment law, employment tribunal, Red Tape

What I say, or what I mean? Red tape and employment law

This is the fourth in our series of blogs about the ‘Red Tape Reduction’ consultation.  In this blog, we look at the opportunity to simplify legislation

Over the last 30 odd years I have seen a number of ‘simplifications’, and not one of them has simplified anything for anyone.   Take a few separate short statutes, and once ‘simplified’ they seem to turn into 100 pages of legislation and 200 pages of ‘guidance’.  Why is this?

It is not because anyone is trying to make it any harder than it is.   It may be because:

a)      European laws are ‘purposive’ – which means they are drafted with an intention to have a particular effect, and national parliaments have to work out how to achieve this – which is more complicated in the UK because …

b)      UK laws are written so that the words we use are what the law is

c)       When the UK courts and tribunals interpret UK implementation of EU laws, this can throw up problems with the UK approach (“what do the words say”) and the EU approach (“what is the legislation trying to achieve”).

There are specialists (Parliamentary draftsmen) who draft the words of laws in the UK.  It is a particular skill, honed in a tradition that stretches back centuries.  These people, when left to do their job, use words as a precise tool.  When it comes to implementing EU legislation they are being asked to frame the detailed wording of laws that are broad brush in their intent. 

When it comes to employment law the EU tends to work on ‘framework’ legislation, leaving it for national parliaments to set out legislation that brings the EU purpose into effect.  In many other EU countries, the national legislation is essentially framework too, and much of the detail is filled in with legally binding management and union agreements at regional, local and sector level.

In the UK we don’t usually have legally binding agreements, so the poor Parliamentary draftsmen end up trying to draft a ‘one size fits all’ set of legislation.  This means that all the variations by sector, size of company, special circumstance have to go into the legislation.  In other legal systems it would go into the appropriate agreements and anyone not covered by it wouldn’t have to read it!

In the UK we have an instinctive feeling that everyone should be treated the same under the law.  So the idea of laws that apply only to employers and employees in a particular sector is very alien to us.  Our ‘gut feel’ that there should be some kind of level playing field results in complications, exceptions, and heartache.

We like the idea of consistency and often feel that is some measure of ‘fairness’ but we don’t like complexity.  Equally we don’t like laws that are not appropriate.

In an employment market that includes global players, national organisations, sector dominant employers, small businesses, and micropreneurs about to take on their first part time employee, it is almost impossible to have one simple, clear approach that suits everyone unless we go back to the EU ‘purposive’ approach.

We could have employment laws that say – “Do what is appropriate and fair give the size of your organisation and its needs, balanced with the effect your decisions will have on the individuals and the degree to which they have brought this on themselves”.

But that, of course, would not satisfy those who want to know in advance that they have done the ‘right thing’.  The law could be simply expressed in a ‘broad brush’ way, but although that would simplify the wording of the law, it would not simplify predicting how the law would apply to a particular situation.

The “red tape” exercise is not going to be able to resolve the core conflict between the two systems applying the UK – that express law in a ‘framework’ way, and in a ‘what do the words say’ way.  So the discussion seems to be taking place around the edges.  But it is not trying to tackle some central issues about whether we could find a consensus of what we meant by ‘fair’ or ‘appropriate’ or ‘relevant’ when it comes to dealing with people in the world of work.

For our earlier blogs in the ‘red tape’ series, click here  for our discussion on whether we are over-regulated, click here for our discussion on how far we can repeal current legislation and click here for the third blog for our discussion on how government guidance notes affect us.

See our previous blog

..to be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060
Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

4 Comments

Filed under employment law, Equality Bill, free stuff