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Monday 18th May 2015
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The police can require their
employees to be clean-shaven –
but can you?
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In today's Workplace Bulletin:
- Why the police can get around equal opportunity laws – and when the rest of us can, too
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Dear Reader,
Beards, goatees, chin curtains, soul patches, mutton chops – whatever you want to call them, the Victorian Supreme Court has just ruled that the state’s police officers need to shave them off or ship out.
Last week, a judge dismissed a leading senior constable’s appeal of an earlier judgment. The policeman was fighting against regulations issued in 2012 that banned male police from having long hair, goatees or beards.
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The policeman argued that this was discrimination. The courts didn’t agree that his goatee amounted to “a protected form of expression” – and furthermore, found that even if it did, the Chief Commissioner of Police had the power under the Police Regulation Act to override anti-discrimination law and determine standards of grooming and acceptable clothing for the force.
Of course, the laws that govern the Victoria Police are a little different to the ones that govern your business. So when can you, as employer, lay down the rules on grooming and presentation?
The good news is that you won’t need Parliament to pass a special law empowering you to personally set standards. The real test is whether your requirement is a lawful and reasonable instruction. |
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Recruiting new staff?
Need to draft a job description or post an ad?
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Health and safety can be a lawful reason to shave
Last month, the Fair Work Commission upheld a decision by BHP Billiton to dismiss an underground truck driver who refused to follow a direction to present to work clean-shaven.
BHP Billiton had adopted a policy that employees must be clean-shaven in order to wear face mask respirators when in the mine as a health and safety measure.
It was found that this was a lawful and reasonable direction to give to employees under the circumstances, and that the employee had made a deliberate and well-informed decision not to comply with it.
If your business wants to implement a grooming or presentation procedure based on health and safety considerations, you will still need to demonstrate that the policy isreasonable. This means that the policy and the instructions given under it should besound, defensible or well-founded.
Is it discrimination to require all staff to be clean-shaven?
Employers can certainly set reasonable standards of dress for their employees. But unless there’s a pressing health and safety requirement, a blanket ban on beards might be unlawful. For example, some people do not shave in accordance with religious beliefs.
Similarly, requiring men to cut their hair short may amount to sex discrimination if it effectively treats men and women differently.
If you do have an appearance and dress code at work, you need to assess whether the code is:
- Related to the job;
- Applied evenly to both sexes, and is;
- Considerate of appearance requirements based on race, religion, or sexuality.
What if an employee says no?
Repeated refusal to comply with a lawful and reasonable direction can amount to misconduct. So what steps does your business take next?
It’s crucial to act promptly, but it can also expose you to legal risk. After seeing a raft of unfair dismissal claims in recent years, the team behind the Employment Law Practical Handbook has developed a 78-page guide to help employers through the process.
Keep an eye on your inbox in the coming days to find out more about Managing Misconduct.
Until next time,
Joseph Nunweek
Editor, Workplace Bulletin
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Australia
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