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“Toning Footwear” Improperly Banned by Employer for Safety Reasons: Arbitrator

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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 toning shoes.

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 departments.

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.

UNITE HERE, Local 40 v Harrison Hot Springs Resort & Spa, 2012 CanLII 51820 (BC LA)