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A Close Shave: Can Employers Ban Beards in the Workplace?

on Friday, 05 October 2018.

Following the recent BBC news story that a police officer is bringing an industrial tribunal case against the Police Service of Northern Ireland over a ban on facial hair, we take a look at the position concerning dress codes and sex discrimination.

The Police Service of Northern Ireland (PSNI) have reportedly introduced a ban on facial hair for officers required to wear respiratory protective equipment at short notice as part of their duties. This has resulted in a police officer challenging the ban at an industrial tribunal in Northern Ireland on the basis of sex discrimination. The officer alleges that elements of the code which arguably relate more to women are not being enforced and that, in any event, the requirement to be clean shaven is disproportionate. The PSNI argue that the ban on facial hair for certain officers is for safety reasons as beards prevent protective face masks from working effectively.

This news story follows the relatively recent media coverage of a woman who was sent home without pay for not wearing high heels. This led to an online petition gaining over 150,000 signatures and the government publishing guidance on dress codes and discrimination.

Beards and Sex Discrimination

The first point to make is that employers are generally free to set whatever reasonable dress code or uniform policy they wish as long as it does not discriminate.

It is not necessarily discriminatory to require women and men to dress or present themselves differently. For example, in Smith v Safeway Plc a dress code which required men to have hair 'not below shirt-collar length' (a requirement which did not apply to women) was found to be lawful when taken in the context of the dress code as a whole. There are also a number of cases which confirm that men and women can be required to dress differently as long as the level of smartness is equivalent by reference to the social norms of the day.

Where elements of a dress code apply to everyone equally but have a disproportionate impact on one gender, ethnic or national group or religion, employees may seek to allege that the code is indirectly discriminatory. In such cases it is possible for employers to justify their position as a proportionate means of achieving a legitimate aim, for example the health and safety of their workforce. This appears to be the type of argument the PSNI is relying on.  

Best Practice

While the outcome and arguments surrounding the PSNI's decision to require certain officers to be clean shaven will likely remain unknown for some time, employers are well advised to continue to review their current dress code policies to ensure they are not potentially discriminatory.

Employers should carefully consider the requirements set out in any dress code and be able to explain its objectives for imposing the code.

Although it is not a legal requirement, employers should also consider consulting with employees prior to introducing a dress code and be ready to consider exceptions where requested by employees who feel disadvantaged due to a protected characteristic.

For further information on employment issues, please contact Michael Halsey in our Employment Law team on 020 7665 0842, or complete the below form.

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