Most people have experience with an employee uniform or dress
code policy (mine is "business casual"). There are often
very good reasons to have employees look or dress a certain way. It
can assist with productivity, promote professionalism and branding,
and ensure uniformity. As such, employees' attire/appearance
can be a legitimate concern for employers. However, to the extent
that a policy has no rational connection to a business need or
unduly infringes on an employee's self expression, it may be
successfully challenged by unions.
This is exactly what occurred in one recent case involving
a hospital dress code policy that, in part, prohibited employees
from revealing large tattoos and wearing excessive body piercings.
These requirements were struck down by an arbitrator.
The hospital was seeking to ensure that its staff looked more
"professional" and was of the belief that this would
assist with patient confidence and patient care. The hospital
stated that most patients were elderly and were uncomfortable with
tattoos and piercings, and that such patients should have the right
not to be cared for by someone who undermined their confidence.
The union argued that the dress code undermined employees'
"self expression" and the policy had no rational
connection to health and safety. The union stated that, overall, in
the absence of any objective evidence as to patient care or patient
complaints, the policy was overreaching and unreasonable.
The arbitrator reviewed the general principle that policies in
unionized workplaces must be clear, consistently enforced and not
unreasonable. The arbitrator then remarked that the employer's
concerns were based on stereotypes about tattoos and piercings. The
arbitrator drew a parallel between tattoos and piercings, and
protected grounds of discrimination under human rights law in
stating the following:
The hospital could not and would not accede to the wishes of a
patient who might be uncomfortable with a care provider based on
the employee's race or ethnic identity, even though some
patients might harbour those types of prejudices. However, the
hospital seems willing to comply with other types of prejudices and
stereotypes that have no link to the quality of the health care
received by the patient.
Because the employer could not provide objective evidence that
the tattoos and piercings caused a problem (indeed, there had been
only two complaints regarding tattoos in a 10-year period), the
arbitrator allowed the union's grievance, found the dress code
policy to be unreasonable and therefore struck down parts of the
policy. According to the arbitrator, the employer had tried to
"fix a problem that does not exist".
This decision is important for unionized employers. It confirms
that arbitrators will require employers to prove that a dress code
policy is reasonable. This will require an employer to put forward
actual evidence of the purpose of the dress code and policy's
utility. To the extent that a dress code is based on perceptions or
"stereotypes", vague allegations as to its purpose, or a
lack of evidence as to its usefulness, an arbitrator is very likely
to find that the policy is unreasonable.
Another important take-away is the commentary in the decision on
societal perceptions of tattoos and piercings. Implicit in the
reasoning is that perceptions of tattoos and piercings change over
time and that, accordingly, restricting employees' self
expression or disciplining employees for tattoos and piercings
(even though not specifically protected by human rights
legislation) will not be received favourably by an arbitrator
absent some compelling evidence.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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