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You have the right to control your employees' dress code, but you can't discriminate based on gender!

by , 17 January 2014
In a recent article posted on our site "What to do if your employee isn't complying with your company's dress code", we looked at what you should do if an employee doesn't comply with your dress code. And while it's important for you to have a dress code in place, you also need to make sure it isn't an unfair discrimination case waiting to happen.

Keep reading and to find out what I mean...

(Click here to read the article: What to do if your employee isn't complying with your company's dress code)

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The case of the dreadlocks
Yes, I said dreadlocks, not deadlocks. This is the case of Department of Correctional Services & another v POPCRU & others - (2012) 21 LAC 1.11.40. Correctional Services dismissed five male officers because they wouldn't cut their dreadlocks off. Let's have a look at the facts:
  • All five officers had dreadlocks, and had them for some time before being told to cut their hair.
  • Three of them said they were members of the Rastafarian faith and two gave cultural reasons. The last one said his ancestors told him to. And so they wouldn't cut their hair.
  • Correctional Services dismissed them. So the officers took them to court for discrimination.
What happened next?
  • The Labour Court said they weren't discriminated against on the grounds of religion or culture.
  • But it said the discrimination was gender-based because female officers can have dreadlocks.
The employer then lodged an appeal. They said the Court made a mistake by saying the discrimination was because of gender.

But what did the court say?

What did the Labour Appeal Court say?
  • The Labour Appeal Court (LAC) looked into the first enquiry to check if the dismissals were for unfair discrimination.
  • It said the employees had to prove the ban on dreadlocks went against their religion or culture. Or that they were at a disadvantage because of their gender.
  • Since the employees could prove discrimination because females could have dreadlocks, then it's safe to assume the dismissal wasn't fair.
  • The test for fairness looks at the impact of discrimination and its effect on the employees' dignity.
  • The Court said the Correctional Services dress code let women wear 'Rasta style' hairdos. But it didn't allow the men to.
  • The norms outlined in the dress code weren't neutral. It enforced 'mainstream' male hairstyles, namely short back and sides military style.
  • This means their code put some male officers at a disadvantage. And they aren't able to fully express themselves in a work environment because their practices aren't accepted. And the company doesn't fully accept them for who they are.
  • The court said the ban on dreadlocks affects employees' religious and cultural beliefs.
  • Looking at if the discrimination was fair, the Court looked at the test for fairness. In terms of the LRA and the EEA, this means to look at the nature and extent of the limitation of the complainants' rights. It covers the impact of the discrimination and the employees' dignity, if it was for legitimate reasons, and if the employer took steps to accommodate the diversity and protect the employee against discrimination.
  • While the Constitution didn't directly apply to the dispute, it was necessary to ask if the act would
  • survive the limitation provisions of the Bill of Rights.
The final outcome...
  • The employers had to prove the dismissals connected rationally with its purpose. And they couldn't achieve this by other means.
  • They couldn't prove that short hair was a vital requirement of the job.
  • Correctional Services lost the appeal, and had to pay the costs.
So what can you learn from this case? When you implement your dress code, make sure all rules apply to both genders, and not just males or females. This includes hairstyles... If you don't want your male employees to have dreadlocks, then you need to apply this to all employees. Just make sure this is an inherent requirement of the job. For a sample Dress Code Policy and 49 other policies and procedures you need to implement today, click here now.
Until next time,
P.S. Did you enjoy today's article? It was in September's issue of Labour Watch Newsletter - which brings you monthly Labour and HR tips, tools and solutions for your business. Click here to find out how you too can get your hands on a copy...

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