Now brooches are on the banned list!

Phobia of Woke

I’ll admit I’m a Daily Mail reader. I say this in the loosest possible way, which means I scan over ‘TV and Showbiz’ when I get 5 minutes for a coffee. It’s a guilty pleasure and I try to make up for it by reading the Legal Gazette as penance.

My sneaky read last week reaped rewards:

‘Now brooches are on the banned list! Baffled woman is asked to remove a Zara spider accessory at work because ‘distressed’ colleague has a phobia’

Oh, come on! Really that’s newsworthy? And someone was actually that distressed?

Maybe I am just particularly robust and being insensitive here. Perhaps there are a myriad of long-suffering workers paralysed by fear at the thought of a colleague wearing arachnid paraphernalia.

Straight to the ‘comments section’ (you know you all do it too). The comments were mixed, though the vast majority showed very little sympathy towards the colleague with the spider phobia. General consensus was that the world has finally and conclusively gone woke mad.

Woke, originally a term to describe being ‘awake’ to racial prejudice and discrimination is now widely used and encompasses everything from social inequalities to identity politics. More recently it has attracted more negative connotations and is connected to the overzealous, or those who are perceived to be offended by the most minor slight. Social commentators warn that if the world becomes too woke freedom of speech could be seriously put at risk.

According to the article, rather than speaking directly to the colleague with the spangled spider, the person went and complained to a manager.

So, my HR compatriots, what would you do if this landed in your in tray? Would you go woke or tell the staff member to go grow up? Or something in between?

I would suggest that if someone had a fear of spiders that was so paralysing that they could not be in a room with a bejewelled accessory, that phobia would likely prevent them going about most of their daily activities. What about spiders on mugs? Or if they saw a spider crawl across their living room floor, or dangling from the roof of the office lift? Put your mind to it, there are not many days in the UK when you don’t come across such a creepy crawly.

Either the staff member was being dramatic and exaggerating, or there was a real paralysing fear. If it is the latter, we could apply Pawlicka v St John and Red Cross Defence Medical Welfare Services. The employee in question suffered with Necrophobia (fear of dead bodies) but it was found not to be a disability. The Government guidance on the subject being that occasional apprehension would not be covered but a fear so paralysing that someone can’t go out would likely be classed as a disability.

In this case there would be two stages:

1. Is the phobia sufficient to be classed as a disability; and
2. If so, would it be a reasonable adjustment to ask all staff members to eradicate any images of spiders from the work area, including their own person

When looking at what is reasonable a tribunal found (Dyer v London Ambulance NHS Trust) it was fair to dismiss an employee who had a reaction to aerosols and body spray, citing that it would be impossible to absolutely ensure that no such substances were used on the premises.

I suspect an employer would find it hard to guarantee that an employee would never come across a spider or spider image whilst at work. In this instance the employee didn’t seem to suggest that the phobia was so bad that she couldn’t work with the brooch in her presence, I’d likely have been telling her to look the other way (or offer her somewhere else to sit) and try and get on with her work. If the employee had never worn the brooch before, and it wasn’t a recurring event, drawing attention to it would likely have created more problems than it would solve (and end up in the Daily Mail…)

Read a similar article here where Elissa explores Sexism in the workplace and answers whether an employer can make an employee wear make-up and heels.

After reading this article on the BBC’s website titled Sexism: Can my employer make me wear make-up and heels?  It started my thinking on dress codes.  I’m heading into the office tomorrow. Once upon a time that would have been wearing the most casual outfit that I could get away with, long hours at the desk and comfort came first.

Lock down and time at home has changed this for me, I’m not a PJs at home person, my day doesn’t start until I am dressed properly. However, going into the office is now is a lovely novelty and I spend more time in meetings, seeing people in the office and making the most of the social time with team members I don’t see very often, and I like to dress for the occasion.

That often means heels, and more often than not make up. However, no one has ever told me that it is compulsory. I love high heels, more perhaps than is normal, but in the event they were part of a forced dress code I am not so sure how I would feel about that.

High heels, I believe do look very smart, they elongate your legs and give the wearer a certain ‘sway’ if they can walk in them. Often they can be considered ‘sexy’. There are companies and organisations that mandate high heels for women. Invariably they do not mandate them for men.

If they are considered ‘smart’ and in keeping with the look/image of a business, then why not? I’m all for equality here and given the chance to compare Loubies with a male colleague at the water cooler, I’m there with bells on.

So why are they not mandated for men? Let’s be controversial here, women look sexy in them. Smart yes, but sexy none the less. Many male decision makers have no interest in seeing a man in high heels. I would bet my mortgage that 99% of dress codes that require high heels do so only in relation to women.

There are a huge range of extremely smart and sophisticated flat shoes available for women. I’m not advocating trainers, pumps or the like. Men and women can look equally smart and professional in flat shoes, but I can see no reasonable reason to mandate that a woman wears heels at work.

How bad could this get? What about compulsory bikinis at work? On a world stage?

The Norway handball team was fined 1,500 Euros for wearing shorts instead of bikini bottoms. When you take a look at them with the mens’ team, its hard to understand what possible performance edge is afforded by the clothing given the uniform provided to the men. If the bikini was required for performance surely there would be significantly less material on the mens’ side?

So what if you are an employer and you want to mandate a dress code or uniform? Employers can reasonably dictate clothing for safety reasons, company branding and require employees to look smart and professional. Requiring items of clothing or accessories that are arguably unnecessary and causes a detriment (sore back and bunions anyone who works in high heels?) could potentially be discriminatory.

I do think the world is changing, my professional upbringing in a corporate firm saw me being criticised in a one to one with a senior partner for having a small tattoo on my inside wrist that was completely hidden by a watch strap, and being informed it was an ‘issue’. I saw a paralegal (non client facing) told off for putting a knitted jumper on when the temperatures dropped below freezing in winter. I would hope such attitudes are now a thing of the past.

Employers should consider what actually looks smart and professional and what is required for the job, though I wouldn’t take any tips from Ukranian Cabin Crew at Sky Up, but then orange really isn’t my colour.

Read a similar article here where Elissa explores phobias in the workplace and debates the best response

A recent judgement has provided some clarity and reassurance for employers regarding COVID related dismissals.

In the case of Rodgers v Leeds Laser Cutting Limited, Rodgers worked in a warehouse style room with 4 colleagues, the business remained open during the pandemic. One of Rodgers’s colleagues displayed symptoms of Covid and was sent home to isolate.

Rodgers ultimately refused to attend work citing concerns over his children’s health and saying he would be staying off work until the lockdown was eased as he was worried about his child who had sickle cell anaemia and the risk of the child contracting the virus.

Rodgers hadn’t been employed for 2 years, and therefore would ordinarily not be entitled to bring a claim for unfair dismissal. He claimed automatic unfair dismissal (an exception to the 2 year rule) on the basis that he had reasonable belief that if he attended work he would be in serious and imminent danger on the grounds of health and safety.

The tribunal concluded that the decision was fair and that whilst Rodgers’s belief that he was in danger was accepted, it was held that it was not a reasonable belief of serious and imminent danger. The judge stated that COVID-19 could potentially amount to circumstances of serious and imminent danger but it did not in these circumstances.

The judgement needs to be treated with some caution:

• It did not examine whether or not the dismissal in terms of procedure were fair, it focussed purely on the automatic unfair dismissal principles and whether COVID 19 on the facts of this case could be caught under the health and safety provisions.
• As a result of that element of the claim failing, the actual dismissal was not examined further.

Crucially the Claimant’s attitude of excluding himself from the workplace until the national lockdown released was criticised, on the basis that he did not consider what the actual situation at work was (or the measures the company may have taken) relying wholly on the national situation. Ultimately Rodgers’s concerns about the workplace were general ones linked to the national situation, not specific to any risk he may have observed at his workplace.

This decision can provide some comfort to employers, on the basis that knee jerk reactions by employees to the pandemic and refusing to attend work are on shaky ground. Employees will need to have shown that they were able to highlight a specific risk in their workplace, this decision suggests. The advice we provided during the pandemic was clear, if someone is refusing to attend work, ensure that your risk assessment is up to date, communicate it, demonstrate, and describe the steps taken to manage the risk and ensure that you have engaged with the employee about their specific concerns.

This case shows that businesses who have taken those steps should be well insulated against claims brought on the grounds of health and safety.

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