Head over heels for workplace dress code policies?

If you had forgotten the furore in 2015 when Nicola Thorp was sent home from work, without pay, after refusing an instruction to buy a pair of shoes with at last a two-inch heel to replace the flat shoes she had worn to work, then you may have been reminded of it this morning. A Report published today by Two Commons’ committees has called for a review of equality legislation after gathering evidence of sexist instructions issued to hundreds of female worker. These included instructions to dye their hair blonde, to wear revealing outfits and to constantly reapply make up.

Every workplace has different dress codes and expectations, so a list of unacceptable clothing items in the policy makes it clear for everyone what is expected (it can deal with other items too such as tattoos, piercings, hair styles). However, the issue is whether the requirement to wear high heels is sex discrimination because a man would not be required to wear high heels. What may surprise many is different requirements for men and women in a dress code will not amount to sex discrimination, provided it applies a conventional standard of appearance and taken as whole, rather than item by item, neither men nor women are treated less favourably in its enforcement.

The Courts and Employment Tribunals have been clear about this principle; so, a requirement for men to have hair “not below shirt-collar length” which did not apply to a woman or a requirement for men to wear a shirt and a tie but women only to dress appropriately and to a similar standard is not discrimination. If we imagine then a dress code that requires women to wear two-inch heels and men to wear only Brogues would that be sex discrimination ?

The other point that appears to have angered some is the idea of employees being “forced” to comply with the dress code. Firstly, you’ll not be surprised to learn that an Employment Lawyer is all in favour of a policy on dress code; it is important in maintaining dress standards because while it may seem obvious to an employer that, say, flip flops should not be worn in the office, a clear list of do’s and don’t’s avoid the need to send someone home to change because it didn’t occur to him or her that it was inappropriate. Secondly, employers “force” their employees to comply with all manner of terms and conditions of employment, policies and procedures. That is the very nature of the employer/employee relationship. In return, the employee receives his or her wage. Unless it is being suggested an employee should be dismissed for their first offence (and as an Employment Lawyer I’m not) then it’s reasonable for an employer to ask its employees to comply with its policies and give any employee not complying the opportunity to do so before considering taking action under the disciplinary procedure.

The Report has found that current equality laws are inadequate. My own personal view is they are, and what employers need is help to better understand their rights and obligations. A good place to start is Acas and you’ll find useful information here

Donna Reynolds is an experienced Employment Lawyer and HR Adviser advising SMEs in Fife, Edinburgh and across Scotland.

Sex, lies and videotapes

Just when you thought things couldn’t get any stranger…..!

Politicians: who voted for them? Well we did actually, so whether or not we like them and what they are (or aren’t) doing, we are stuck with them. Therefore, from a business perspective, I think we should view all the stuff in both the US and Europe (including the UK) as a spectator sport – unless of course it will or may impact on business. In other words, ignore and (largely) get on with life.

So, what’s new on a cold January day at the start of 2017? UK unemployment is at or close to the rate that economists call “full employment” (albeit that many of the jobs are at or about the living wage); the results of Sainsbury’s, Tesco, M & S and others have lifted some of the High Street gloom; and while the recent fall in Sterling doesn’t help importers, it does help exporters; and so on. But, are we confident enough to make business decisions: employee more people, make capital investments, open new locations, decide to sell – whatever?

There’s a real risk attached to waiting and seeing because we never know what tomorrow, next year or the next election will bring. Yes, we are trying to forecast/guess in a time of unusual uncertainty, but most (or at least many) of us were in business during the financial crisis in 2008 – and survived that chaos. So, I think that – to the extent we can – we should ignore all the political chaos around us and get back to focussing on our businesses and what we really can influence.

Therefore, what are your business resolutions for 2017?

  • Get the changes made to your employment contracts that you had always meant to do?
  • Stop relying on the terms of business that you copied from somewhere years ago, and get ones that work?
  • Start planning your exit from your business and do the housekeeping needed to make it ready for sale?

They all seem worthwhile that spending ages reading who said or did what with whom (entertaining though that is!).

And of course, my colleagues and I would be happy to help with your shopping list of to-do’s – but a starting point has to be to make that list. What’s holding you back?

Your mobile phone or your business?

The vast majority of employers have a policy on the use of personal mobile phones in the workplace where, typically, they either place an outright ban on employees using mobile phones during working hours or personal use is restricted to certain times of the day for example, during breaks or in the case of an emergency (and if you haven’t updated your policy to cover smartwatches you should). However, ask those same employers how many of them have disciplined employees for breaches of this policy and it’s likely to be relatively few. Of course, this may just be because their employees can be particularly adept at hiding what they’re really up to.

Well it seems that the success of your business may depend on how well you police the use of mobile phones in the workplace. Management of the England national rugby union team are cracking down on players’ use to improve their skills. Dr Sherylle Calder, the newly appointed Visual Awareness Coach, said “In the modern world, the ability of players to have a good awareness is deteriorating because of mobile phones. We will be working hard on awareness which helps you make effective decisions under pressure”. Reported here at Daily Mail

Could this apply to the world of business? And if so, what if all it took to improve your employees’ ability to make good decisions and therefore improve your business was a break from mobile phones? It might just be worth a try – just don’t forget to have Occupational Health on speed dial to help deal with the withdrawal symptoms.

Donna Reynolds is an experienced Employment Lawyer and HR Adviser providing legal and practical advice to employers in Fife, Edinburgh and across Scotland.

Life after Brexit: The impact of the Trademark System: what you need to know

2016 has been an eventful and turbulent year, with some unexpected events making for interesting times.

As we approach of the new year, we are filled with uncertainty of what 2017 will hold, especially with the triggering of Brexit looming.

If you make any resolutions for 2017, make it PLANNING! Businesses will have to start make contingency plans for how they will adapt in this ever uncertain environment.

One thing that is often put on the back burner is intellectual property. At the moment (and up until Brexit takes place) a UK trademark can be obtained by applying to the UK IPO or through the EU IP Office. The latter was usually the favourite for businesses since this dealt with EU and UK trademarks in one fell swoop. If you hold an EU trademark or are thinking of registering one, then here are some points to consider:

  • At the moment, your rights and protections under UK and EU law, are unaffected
  • After Brexit, EU trademarks will cease to have effect in the UK
  • There may be a conversion process to enable EU trademarks to convert UK trade marks – however this is still unclear
  • There may be separate fees to be paid in order to protect both the UK and EU trademarks once renewal of trademarks are triggered
  • If the existing trademarks have only been used in the UK, then your trademark runs the risk of revocation
  • Any existing seniority claims based in the EU trademark based on national rights in the UK will cease to have effect after Brexit
  • If you apply for an EU Trademark after Brexit, you will have to prove you have a real and effective commercial reason for establishing a trademark in the EU
  • If you are a UK company planning on filing a trademark, then we advise you either 1) file an EU application before Brexit takes effect, or 2) simply file a UK registration only (if you only intend to have a commercial reach in the UK).

We expect that this will mean yet more increased cost for businesses and their customers, but forewarned is forearmed. Watch this space for further developments.

Online terms and conditions – a common myth

Myth: online and alternative dispute resolution – everyone has to take part….

Reality: only some traders require to participate in ADR ….


The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 created new requirements for businesses in relation to alternative dispute resolution (ADR). Some commentators and businesses are spreading a misconception, that every single business (whether an online trader or not) is required to use an ADR organisation to resolve disputes, when the truth is that only in certain cases does ADR have to be used. In some cases, organisations are required to use ADR by law, rules of a trade association or term of a contract, but for the other businesses – normal judicial and settlement options are available and ADR can be negotiated, if it is desired at all, between the parties in dispute without reference to the regulations.

We have seen examples of businesses who have “accidentally” signed up to ADR due to these misconceptions, in some cases leading to expensive, time consuming and avoidable procedures, all while not realising that there are other options in this ADR area.  We have also seen examples of businesses and sub-contractors being treated unfairly, being misled or through ignorance unnecessarily asked or forced to comply with ADR by partners, suppliers, banks, financial houses (who are similarly labouring under misunderstandings).

We have helped lots of businesses with their contractual notification requirements in this area recently. If you have any queries in relation to your business and its liability in relation to ADR, please get in touch with Stephen Cotton or Emma Arcari at CCW.