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Oct 26, 2012

Thorough risk assessment needed before footwear ban: Arbitrator

Employer’s ban on toning footwear needed proof of hazard before limiting employees’ choice
    
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A British Columbia employer should not have banned employees from wearing “toning footwear” at work for safety reasons without fully investigating whether the shoes were a health risk, an arbitrator has ruled.

Trishia Schwartz worked in a café at the Harrison Hot Springs Resort and Spa in Harrison Hot Springs, BC. In 2010, Schwartz began wearing toning shoes — shoes with a rounded sole designed to change the way someone walks, resulting toned muscles, weight loss and improved posture. The resort’s collective agreement stated that comfortable shoes must be worn that complemented the employee’s clothing. Schwartz purchased black toning shoes to go with the dark clothes that café employees wore.

On Nov. 3, 2010, Schwartz was walking on an inclined floor designed for wheelchair access when she stumbled and rolled her ankle. There was some pain but she finished her shift. Schwartz, who was on the joint health and safety committee, researched the shoes and found reports of similar incidents. Since she had seen other employees wearing the shoes, she reported the incident to her supervisor and the director of HR.

The joint health and safety committee, including Schwartz, decided to ban toning footwear from the workplace due to concerns similar incidents would happen, as well as complaints they had read on the Internet about hip and back pain. On April 5, 2011, the resort issued a memorandum to employees prohibiting the shoes.

Some employees continued to wear the shoes and claimed they were more comfortable than regular shoes to wear over the course of their shifts. The union filed a grievance, claiming the ban violated the collective agreement’s provision on comfortable footwear and there was no reasonable basis for it.

The arbitrator found that the resort was limiting its employees’ personal choice in footwear, so it needed a legitimate health and safety reason to do so. However, neither the resort not the joint health and safety committee undertook a thorough risk assessment of the footwear. The incident with Schwartz was the only reported incident involving the shoes and the resort didn’t determine if the shoes were actually the cause. There was also only cursory research done on the shoes with unsubstantiated reports.

The arbitrator ruled that the resort’s ban on toning footwear was “inoperative and unenforceable” as there was no reasonable basis for it.

“Whether an article of apparel is a hazard and unsafe in a workplace is not a matter of subjective or physician judgment,” said the arbitrator. “It is an evidence based judgment following a thorough risk assessment to identify a hazard, the risk associated with it and appropriate ways to eliminate or control the hazard.”

For more information see:

UNITE HERE, Local 40 v. Harrison Hot Springs Resort & Spa (May 16, 2012), James E. Dorsey – Arb. (B.C. Lab. Arb.).

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