A British Columbia arbitrator has held that an employer violated
its collective agreement by banning the wearing of "Toning
Footwear" in its workplace.
An employee had bought a pair of "Skechers Shape-ups",
which the arbitrator described as having a "rounded or wedged
sole . . . designed to change the way a person walks . . . The
claim is the result will be toned muscles in the legs, thighs,
buttocks and abdomen, weight loss and improved posture . .
The employer, which operates a resort, had issued a policy
prohibiting the wearing of shoes with a curved platform sole at
work because they are unsafe, stating a concern that the sole can
cause instability and a potential rollover of the ankle, and noting
that there had been several lawsuits in the United States involving
The union challenged the policy under an article in the
collective agreement which provided that "Comfortable shoes
will be worn which will also complement the attire worn."
The arbitrator decided that the employer was limiting
employees' personal footwear choices and had not undertaken a
thorough risk assessment. The employer did not have a
reasonable basis to conclude that this type of shoe was
inappropriate for use at work by all employees in all
The arbitrator ordered that the policy was inoperative, but gave
the employer more than four months to undertake a thorough look at
toning shoes and determine if that type of shoe was a hazard for
any groups of employees or area of the workplace.
While this decision is based on the specific wording of the
collective agreement in question, it demonstrates how unionized
employers' safety rules can be challenged when they limit
employee freedom but are not clearly supported by evidence.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
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