by Jenny Wakely, Senior Associate at AOC Solicitors
Aer Lingus v. Elizabeth Barry EDA2331 was an appeal to the Labour Court (the “Court”) by the Complainant against a Workplace Relations Commission (“WRC”) decision which found that her discrimination complaint was not well founded. The Complainant was a cabin crew manager with Aer Lingus. She complained that a number of elements of the uniform issued to female employees in 2020 discriminated against her on the grounds of gender.
In February 2020, the Respondent issued a new uniform to its cabin crew. The Complainant argued that the uniform issued to female employees was less practical and comfortable than the uniform issued to male employees and portrayed an “outdated” image of women.
The Complainant lodged her discrimination complaint with the WRC on 28th October 2020 and the cognisable period for the purpose of the Employment Equality Acts was therefore 29th April 2020 to 28th October 2020. It was agreed by the parties that the Complainant was working and wearing the uniform in question during that period. The comparator was a male crew member.
The elements of the uniform that were the subject of the Complainant’s complaint were the following:
- The woman’s jacket which has three quarter length sleeves meaning that the wrist and skin on the arms is exposed. This, the Complainant argued, meant that women had to wear a short sleeve blouse and in cold weather it was not practical to wear a cardigan underneath. In contrast, the Complainant pointed out that the male jacket had normal length sleeves and easily facilitated the wearing of a cardigan underneath.
- The requirement for women to wear high or medium heeled shoes outside the aircraft unless they had a medical certificate. Female crew members were provided with flat shoes to wear while on board the aircraft, but were required to wear high or medium heeled shoes while in uniform outside the aircraft. No similar requirement applied to male cabin crew.
- The requirement for women to wear pop socks or tights when wearing trousers which, the Complainant argued, were “slippy”. No similar requirement applied to male cabin crew.
- The design of the female blouse which has two petal shaped holes above the left beast area leaving skin exposed. The male crew member shirt does not have similar exposure.
- The provision of handbags to female crew members and satchels to male crew members which, the Complainant argued, were much more practical.
The Respondent’s position was that while the Complainant may not like certain aspects of the uniform, that dislike could not be elevated to a discrimination claim. The Respondent’s legal representative referred to the extensive research and staff consultation that the Respondent carried out prior to the introduction of the new uniforms in February 2020, and the fact that the Complainant had raised no issues or concerns with the Respondent internally or through her trade union.
Decision: The Court noted that the facts in this case were not really in dispute. The Court referred to the case of William Peter O’Byrne v Dunnes Stores  ELR 96 in which the Labour Court considered a discrimination complaint regarding a dress code and stated as follows:
“discrimination is classically defined as the application of different rules to comparable situations or the application of the same rules to different situations citing Finanzamt Koein-Alstadt v Schumaker  ECR I-225. It went on to state that applying that principle to whether or not a dress code is discriminatory, it is the Court’s view that the appropriate approach is to consider if it applies a common standard of neatness, conventionality and hygiene to both men and woman [sic] and does not unreasonably bear more heavily on one gender than it does on the other. This requires that the code be looked at as a whole and not item by item and garment by garment.”
The Court decided that although the Complainant had complained about five elements of the uniform, the Court “taking on board the fact that it is not required to look at the uniform item by item finds that there are three distinct issues before it.” The Court divided these into the following:
The provision of a handbag rather than a satchel
The Court noted that the Complainant had confirmed that she was in fact provided with a satchel when she requested one. For that reason, the Court found that she was not discriminated against in relation to the provision of a handbag.
The blouse, jacket and pop socks
The Court described these items as reflecting “societal norms” and referred to the Complainant’s issues with these items as reflecting her individual preference. The Court found that “when taken as part of the unform as a whole”, these items “do not bear unreasonably more heavily on females than their male counterparts”. On that basis the Court found that there was no discrimination.
The Court referred to the evidence given by the Manager of Operations for Dublin, Cork and Manchester on behalf of the Respondent and the fact that she “could offer no basis for requiring female members of staff to wear high/medium heels prior to boarding and when departing the aircraft.” The Manager of Operations gave evidence that she did not know the purpose or reason for the requirement, but she believed it to be the “industry norm”. It was accepted that there was “no functional basis” for the requirement.
It was confirmed at the hearing that a review was carried out during the Covid-19 pandemic following which female staff now have an option to wear flat shoes outside the aircraft if they wish.
The Court found that the mandatory requirement to wear high or medium heels outside the aircraft during the cognisable period was discriminatory “[i]n circumstances where no justification or functional basis could be adduced for this requirement” on the basis that the requirement “does unreasonably bear more heavily on female staff”.
The Court found that the requirement of the dress code that female staff wear medium or high heeled shoes when not onboard the aircraft constituted unfavourable treatment on the grounds of gender. The Court ordered that “if it has not already happened” the requirement should cease. It also ordered that the Respondent pay the Complainant €6,000 in compensation.
Takeaway for Employers: This case highlights the need for employers to carefully consider their uniform requirements or dress code policies to determine if different requirements unreasonably bear more heavily on one category of employee than on another, and whether or not such different requirements are necessary and can be justified.
About the author
Jenny Wakely qualified as a solicitor in 2012 and holds a first class LL.B and LL.M. She specialises in Employment Law and joined the AOC Team as a Senior Associate in September 2021.
Jenny has worked with a broad range of employers in Ireland and abroad as well as with major insurers and private individuals. Her work encompasses all aspects of non-contentious and contentious employment law and related litigation. She advises clients in respect of all matters relating to the employment relationship, from recruitment to termination, and everything in between. Jenny also regularly drafts and reviews contracts of employment and employee handbooks and policies. She also advises employers on data protection matters and assists employers in responding to complex and wide-ranging data subject access requests.
Jenny is a member of the Employment Law Association of Ireland. She frequently writes on employment law related matters.