Refusal to wear high-heel shoes is not punishable by disciplinary action

Disputes between employers and their workers relating to the use of a uniform and conflicts between the employer’s organizational authority and a worker’s rights to privacy, dignity and personal portrayal are common.

In the case at hand, we analyze a judgment given by the High Court of Justice of Madrid on March 17, 2015, in which an employee working as a tourist guide refused to wear a uniform – which included high-heel shoes – that was provided to her in 2009. However, it was not until June 17, 2012 – three years after receiving the uniform for the first time – that she was notified in writing that it was compulsory to wear the company uniform.

The worker continued not to wear the uniform and, on October 31, 2012, disciplinary proceedings were initiated, in which she alleged that she did not wear the uniform because she considered that it undermined her dignity and that, amongst other things, the high-heels were inappropriate for her work.

As a result of the proceedings, the worker was suspended from her duties without pay for six months for committing the very serious infringement of disobeying the orders given by a superior.

Following a claim filed against the disciplinary action, Madrid Labor Court No. 15 gave a judgment that entirely dismissed the employee’s claim and upheld the penalty imposed by her employer.

However, the Madrid High Court of Justice upheld the appeal to a higher labor court filed by the employee against the first instance judgment, revoking it and declaring the penalty null and void, basically on the following grounds:

• Firstly, because the penalty was inappropriate and excessive, as the refusal to wear a uniform had been tolerated by the company for three years.

• Secondly, because the order given to the worker was discriminatory, in breach of article 14 of the Constitution and therefore null and void, thus justifying her refusal to comply.

In particular, the Labor Court noted that female workers were obliged to wear high-heel shoes and male workers to wear flat shoes, which was a distinction based on gender. In addition, it considered that men and women have the same standing balance and that the use of high-heels by women is unnecessary and not only fails to constitute either a benefit or disadvantage, but is also capable of harming the health of female employees, as they are uncomfortable, tiring if worn while standing for several hours and can even affect their performance and the quality of service provided to the general public.

Rosa Lara

Garrigues Labor and Employment Department