Hopping Mad about High Heels

heels

Hopping Mad about High Heels

High heels are a standard fixture in the wardrobes of 78% of adult women in the UK and so wading, or perhaps that should be taking small tentative steps, in to the debate is not without its challenges. The recent case of Nicola Porter who was dismissed for failing to wear high heels has raised some interesting HR issues.

Can a company require its employees to comply to a dress code?

The simple answer is yes. The code must be reasonable and this will always be determined by the context of the company.

Companies are allowed to impose the wearing of gender specific items such as a tie or a skirt and the relevant case law to support this comes from an EAT Appeal decision DWP v Matthew Thompson which ruled that requiring men to wear ties was not necessarily discriminatory.

The case established the right of companies to create dress codes that specified the wearing of specific items of clothing, such as a tie, by members of one sex to promote smartness. The key issue is that the same standard of smartness has to be applied to employees of the other gender.

Can a company require women to wear high heels?

The simple answer is no. The first response from the majority of commentators including me, was that requiring the wearing of high heels shows a very sad, outdated and sexist attitude by the employer and they themselves backed down and agreed it was sexist http://www.bbc.co.uk/news/uk-england-london-36272893.

Whilst the accusation of sexism is probably true, the fact that so many women own (and presumably wear) at least one pair of high heels does undermine the general thrust of that argument. In a court there would be a robust legal debate about whether this was or was not indirect sex discrimination under the 2010 Equality Act.

High Heels are dangerous

heels dangerHowever, the case against high heels is immeasurably stronger than accusations of indirect sex discrimination. There are 22% of women who don’t own a pair of high heels and a short and totally unscientific survey of my women friends and family indicates that those who don’t own a pair have all worn high heels at some point in their life. This group all expressed a strong antipathy to the pain and discomfort caused by wearing them and would refuse such a request.

Women who object to wearing high heels have a rock solid and undeniable argument about the unsuitable and damaging nature of high heels in their favour when citing the damage to health and the danger of trips and falls that wearing high heels causes.

 Vulnerability to claims by employees

The Health and Safety Executive specifically identifies high heels as inappropriate workplace footwear and says:

“Avoid certain footwear, such as open-toed shoes, sandals, flip-flops, high heels and smooth soles, etc.” http://tinyurl.com/HSE-Footware

The medical evidence from the British Medical Journal study into 66 medical studies into the damage caused by high heels is damning. In their study ‘High-heeled shoes and musculoskeletal injuries: a narrative systematic review’ http://bmjopen.bmj.com/content/6/1/e010053.full#sec-17 they concluded that there is strong evidence that high heels are associated with … injury and that high heels cause alterations to the mechanics of walking and affect the bodily structures from the toes to the spine in ways that may be seen as markers of conditions such as osteoarthritis & bunions.

The problems with high heels have not gone unnoticed in the fashion industry itself and in June last year Vogue asked “why have high-heel injuries doubled?” http://tinyurl.com/Vogue-High-Heel-Injuries when they followed up on an American study that demonstrated injuries had gone up from 7,097 in 2002 to 14,140 in 2012.

The American Osteopathic Association have identified the following problems associated with wearing high heels:

  • Ingrown toenails
  • Irreversible damage to leg tendons
  • Nerve damage and bunions
  • Overworked or injured leg muscles
  • Osteoarthritis of the knee
  • Plantar fasciitis and
  • Low back pain

Taking everything into consideration the health and safety of your staff out weighs any fashion or brand consideration that your company wishes to portray.

Don’t fall flat on your face

Doheels fall

  • Provide advice and guidance to staff on sensible footwear
  • Check that any staff who choose to wear high heels understand the risks
  • Have an overall limit to the height and nature of heel that you permit

Don’t

  • Insist that your female staff wear high heels
  • Take sanctions against staff members wearing low heels

 

Dealing with Grievances

             

Introduction

Having an effective way of resolving workplace disputes is one of the key building blocks in helping to promote and develop an effective and cohesive organisation. It may seem counter intuitive to link the two elements; but by acknowledging that sometimes things will go wrong and providing a process for dealing with such incidents gives reassurance to employees.

The most recent report into Conflict at Work[1] shows that almost half of employers (48%) report an increase in the use of Grievance Procedures and 65% report an increase in troubleshooting by HR to help resolve disputes. The average number of days spent resolving Grievances varies between 9 – 14 days with over 80% resolved in house.

Tribunal System

John Cridland, CBI Director-General believes that ‘the current system of employment tribunals is broken’, and more than two-thirds of respondents to the CIPD survey believe that ‘there is no effective protection for employers against wholly unjustifiable claims’. Almost 65% of employers have experienced an employee claiming unfair dismissal and ‘tagging on’ a discrimination claim in the hope of getting more compensation. Fifty-five per cent have experienced an employee who has brought a complaint against an organisation on grounds that the respondent regards as malicious.

Whilst it is never completely impossible to avoid a determined employee registering a claim with the Tribunals Service it is possible to increase the chances that it is dismissed at an early stage if you can demonstrate that the case has been properly handled in line with ACAS guidelines and with a fair process.

An Effective Grievance Process

The CIPD[2] identify 3 key aims of an effective Grievance Process it should:

  1. Provide individuals with a course of action if they have a complaint (which they are unable to resolve through regular or informal communication with their line manager)
  2. Provide points of contact and timescales to resolve issues of concern
  3. Try to resolve matters without recourse to an employment tribunal

When does an ‘Issue’ become a ‘Grievance’?

There’s no hard and fast rule about this but something that is raised a number of times is likely to become a Grievance if not clearly dealt with. Always start with ensuring the employee has had an opportunity to raise the matter informally in the first instance. When someone has raised something verbally on more than one occasion it is likely that they haven’t accepted the first response and need a clearer answer.

Rather than just giving an answer ‘on the run’ e.g. in the open office or on the shop floor, take time to find a quiet space with some protected time to address the issue more fully. Check you understand what the issue is and give your answer on the spot or agree a timetable for getting back to them – and stick to it.

If the issue involves interpersonal relationships then it is good to consider some mediation. This will involve a 3rd party acting as a broker between the two conflicting employees seeking to get a resolution. The CIPD has useful guidance on mediation for employers if you need more information.[3]

Investigation

Where the complaint is not suitable for informal resolution or that has failed the next step is usually to have a more detailed investigation. Someone who has had little or no contact with the parties and can bring some independent and objective views to the situation is ideally the best choice as an Investigating Officer.

The Investigating Officer should create a report that can be used to inform a formal Grievance Hearing that decides the outcome of the case.

The Balance of Probabilities

Disputes at work are settled on the basis of ‘the balance of probabilities’ and not the principle of proving something ‘beyond reasonable doubt’. This can be confusing for employees and employers as having watched a lot of TV courtroom dramas, employees often think the employer has to prove they did something wrong. This isn’t the case, the employer can have a reasonable belief based on similar facts previously, or examples of similar behaviour that someone did something that has been alleged they did. Thus if someone previously took a colleague’s item from the fridge; then assuming they had the same opportunity and there is circumstantial evidence it may be reasonable to find that they did it a 2nd time even if not observed.

Resolution

Once an organisation has had to use the formal Grievance procedure feelings will have been running quite high and it can be very difficult to find a resolution that all parties agree to. The natural instinct is to try to keep everyone happy but the organisation should not shrink from making a decision that one of the parties feels unhappy with. Providing there is a process for appealing the outcome and you have followed a fair process you will have demonstrated to the Tribunal’s Service that your system is robust.

If you would like any help with drawing up your Grievance Procedure or help with Investigation and resolving Grievances then please contact us on enquiries@charltonassociate.org

[1] Conflict Management Survey Report CIPD http://www.cipd.co.uk/binaries/conflict-management_2011.pdf
[2] Discipline and grievances at work CIPD Factsheet http://www.cipd.co.uk/hr-resources/factsheets/discipline-grievances-at-work.aspx
[3] Mediation: an approach to resolving workplace issues CIPD http://www.cipd.co.uk/publicpolicy/policy-reports/mediation-resolving-issues.aspx

Grievance Proceedings

Many potential grievance issues can be resolved informally with ‘a quiet word’ and this is often the best way. That said, occasionally, employers may find that they are faced with a formal grievance matter, lodged with the employer through the Grievance Procedure.

A grievance (problem or concern) occurs where an employee is aggrieved about an action taken, or not taken, by their employer, line manager or another employee in relation to their employment. This could be an individual grievance or a group of employees with the same or similar issues.

The raising of a grievance should be seen as a positive step by the employee to remedy a situation. It is in everyone’s interest to ‘nip problems in the bud’ before they get out of hand and risk escalating into bigger issues costing much time, money and stress.

Every employer should have a published, written procedure for dealing with grievances. In addition, this should be supported with management training and guidance on how to implement it. These two aspects will ensure fairness and consistency which are paramount in such matters.

There are some key issues to consider when ensuring the effectiveness of a grievance procedure and its implementation:

Ensure all parties are clear on the nature of the grievance and, where appropriate, the potential remedy for which the employee is looking. Ideally the employee should put their grievance in writing to avoid any ambiguity.

If it is not possible to deal with the matter informally, every effort should be made to ensure that grievances are dealt with swiftly and without unreasonable delay. Reasonable timescales should either be incorporated in part of the procedure or alternatively agreed up front and documented with all relevant parties at the beginning of the process.

Ensure the grievance is looked into thoroughly. This could be carried out through one, or a series of meetings, with one or more people present depending on the complexities and nature of the grievance.  The person conducting these meetings should be suitably experienced or trained to so do. Such meetings would usually be conducted by the employees Line Manager (unless the grievance is related to the Line Manager or more senior employee).

Where the grievance procedure is taking its course, the matter should be treated with confidentiality by all those involved, whilst recognising that the principles of ‘need to know’ must also apply.

Allow the employee to be represented at any meetings, as is their statutory right. This would be a work colleague or a trade union representative.

At every stage of the process it is imperative that accurate records are kept. It is advisable to have an impartial person present, to take a written record of what is said at meetings. Letters should be sent formally inviting people to meetings and detailing the outcomes of the meetings where appropriate. Copies of all correspondence should be kept on the employees personnel file for future reference.

The procedure must include an Appeals process. The employee should provide in writing the grounds for their appeal hearing and it should ideally be heard by a manager not previously involved in the case.

Finally, it really goes without saying, that it is imperative that the grievance procedure is followed and that the agreed outcomes from the process are followed up and actioned in a timely fashion.

Disciplinary Proceedings

Disciplinary Proceedings

From time to time employers will find they have to take action against a member of staff who does something wrong. Dealing with disciplinary matters can sometimes be a source of frustration, anxiety and stress for both the employer and the employee; therefore it is very important that organisations have an effective disciplinary policy for dealing with incidents when they occur and that managers have guidance and training in how to implement them.

There are 5 key issues to consider to ensure that you have an effective disciplinary procedure:

  1. Setting standards
  2. Taking early action
  3. Consistency
  4. Effective investigations
  5. Natural & Procedural justice

Setting standards

Don’t assume that employees will automatically know what standard of behaviour and conduct is expected of them. There are many personal, cultural, gender, age etc factors that affect how they behave at work. What many organisations do is have a written Code of Conduct that they go through with all new employees on their induction when they spell out just what is expected of them during their employment. It is best to focus on the positive behaviours, attitudes and conduct you want employees to demonstrate rather than a long list of negative items.

Taking early action

Misconduct is very much in the eye of the beholder; even where there is a clear Code of Conduct the application of it will vary from manager to manager and this, in itself can cause problems.

The first step for any manager when they see something they don’t approve of is to take the employee aside to a separate room or space where they can be challenged about their behaviour and asked to account for their actions. An ounce of prevention is worth a pound of cure and acting early will save many issues from developing into major problems.

There is no need or expectation that the employee has any representation and this should be a straightforward management conversation, challenging the behaviour or actions, setting the standard, giving advice, warnings about repetition etc. Wherever possible a note should be kept of the meeting but this does not need to be shared with the employee.

Consistency

Inevitably different managers will have different standards; we are all used to being able to deal with ‘tolerable variations’ and adjust our behaviour accordingly so this isn’t in and of itself a particular problem.

However, when the variance between managers becomes too great it can cause real difficulties. If you want to take action against an employee and they can point to an instance where similar behaviour has gone unremarked or unchallenged the manager’s case is instantly weakened.

Effective investigations

If an employee repeats the behaviour that has previously been challenged or does something that the manager considers to be a significant breach of the Code of Conduct then it is important to have a thorough investigation. It is here were many organisations encounter difficulties that cause problems down the line. A flawed investigation is one of the most common reasons why companies are prevented from taking firmer and more definitive action against employees. The steps to take in an investigation are:

  • Ask the employee for an account of their behaviour as set out in the section Taking early action above.
  • Consider suspension in all cases but if the matter is potentially Gross Misconduct then suspend them immediately. It is very difficult to dismiss someone for Gross Misconduct if they weren’t suspended when the incident occurred.
  • Inform them you are starting an investigation and of their rights to be accompanied
  • Sit down and write out a series of questions you want to have the answers to that you will use to guide the interviews with the employee and any witnesses. Failing to think through the questions and to properly record the answers is where many investigations falter.
  • Where there is conflicting evidence go back an forth between witnesses to seek clarification.
  • Write up your interviews and get them signed off by witnesses

Natural & Procedural justice

Implementing your disciplinary procedure is not a legal matter and you should be guided by the principles of natural justice:

  • Has everyone had a full opportunity to have his or her say?
  • Has it been done in a timely fashion?
  • At the same time have people had sufficient time to consider their responses
  • Be guided by, but not trapped by rules and procedure, apply some flexibility without missing any steps out
  • Avoid taking a confrontational or inquisitorial approach
  • Make judgements based on ‘the balance of probabilities’ not ‘beyond reasonable doubt’