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When can your employer tell you what to wear?

Posted by on Sep 9, 2012 in HR Issues, Legal, Moneyville | 0 comments

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            August 31, 2012

ImageWhen it comes to what you can wear on the job, workplace safety is one place

where employers have a lot of sway.   VINCE TALOTTA/TORONTO STAR

The other day I went to the butcher and the man who served me wore a disposable elasticized cap over his head and a similar contraption that looped over his ears covering his beard.

When I commiserated with his obvious discomfort on a hot day, he said there was no getting around the requirements because health and safety inspectors make frequent, unannounced visits to the shop.

This seems like an obvious situation where an employer can impose dress requirements to comply with legal requirements. But how far can your employer go? In what circumstances can the company tell you how to dress or dictate personal grooming?

Glenn Demby answered this question in a recent column for HRInsider.ca. Demby, a lawyer, says there are seven circumstances where employers can lay down the dress code law:

1.    It serves a legitimate and important purpose.
2.    The policy is necessary to accomplish the purpose.
3.    There are no less restrictive alternatives.
4.    The policy is clear and unambiguous.
5.    The policy doesn’t violate  the collective agreement (in a union workplace).
6.    The policy doesn’t discriminate on the basis of gender, religion, race etc.
7.    The policy is consistently enforced.

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He also gave some examples of how some labour arbitrators have applied these rules.

*  A nursing home infection control policy that bans staff  from having “colored nail polish, false fingernails or sculpted fingernails.” This was acceptable based on the employer’s evidence that fungi, bacteria and viruses from artificial nails pose an infection risk that couldn’t be controlled by making employees wear gloves.

* A hospital policy that prevented kitchen staff from wearing facial jewelry including nose studs was unacceptable because the employer couldn’t show that nose piercings and wearing nose studs increased the risks of transmitting disease.

* When a resort employee wearing shoes with platform soles slipped and fell, the employer accepted  adopted a safety policy banning shoes with curved platform soles. This policy was struck down because the committee acted hastily based on speculation and internet research without doing a proper independent hazard assessment.

* A food store could not require all employees to tuck their shirts in. Marketing surveys showed that staff neatness and professional appearance was important to customers,  but the employer couldn’t prove a tucked in shirt promoted the desired image. The labour arbitrator said the policy was unacceptable because employees with particular physical characteristics — beer bellies, large bust lines and general portliness — could be embarrassed or humiliated by having to wear their shirts tucked tightly into their waistline *  A policy forbidding primary school teachers from wearing jeans or sweatpants was ruled unacceptable. While the arbitrator acknowledged teachers serve as role models, he found there was no evidence that wearing jeans or sweatpants made them any less of a role model. He concluded that more casual dress would be perfectly acceptable for teachers participating in outdoor activities and field trips.   hese situations are all different, but Demby says each case illustrate that in all cases courts and arbitrators will weigh the employer’s interest in regulating workplace dress against the employee’s right of self-expression.

When do you think a dress code or a personal grooming code is or is not acceptable?

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