Canada: Introducing The Smell Test: Disciplining An Employee For Body Odour

Summer is here. And with it comes the awkward but very real workplace issue of employee hygiene. The question is, what can employers do about an employee with body odour and hygiene issues? A recent decision of the BC Human Rights Tribunal, Southwell v. CKF Inc., 2017 BCHRT 83 ("Southwell") provides guidance.

Facts

In Southwell, the Employer manufactured and sold food service and packaging products. The newly hired Complainant was responsible for manufacturing the food packaging product. He received extensive health and safety training to ensure the packaging was not exposed to contamination. During his training, the Complainant never advised the Employer of any medical conditions.

Shortly after the Complainant's hire, the Employer received complaints from other employees about the Complainant's hygiene, including spitting on the floor, body odour and not removing himself from other employees prior to experiencing flatulence.

The Employer had a meeting with the Complainant and specifically raised the issue of his poor hygiene, both verbally and in writing. The Employer noted that body odour and flatulence could be a result of a medical condition and, if so, this should be reported to his manager. The Complainant did not advise of any medical issues, and the Employer asked that he take steps to correct the problem.

Two months later, the Employer met with the Complainant for a performance evaluation. The Complainant's hygiene was not discussed at this meeting, although a number of concerns relating to the Complainant's performance were addressed.

Shortly thereafter, the Complainant's employment was terminated within his probationary period, due to his poor performance.

The Complainant filed a complaint with the BC Human Rights Tribunal, alleging discrimination in the area of employment on the basis of physical disability. He alleged that he indeed had a medical condition which caused his body odour and flatulence, but it was not diagnosed until after his termination. He noted that the Employer did not ask him to obtain a check-up from his doctor.

Decision

The Tribunal dismissed the Complaint as having no reasonable prospect of success.

The Tribunal stated that the Employer had fulfilled any duty to inquire by pointing to the possibility that the Complainant's body odour and flatulence were caused by an underlying medical condition and asked the Complainant to take steps to address the issues. The fact that he chose not to see a doctor at that time was no fault of the Employer.

Further, the Tribunal found that even if the Complainant could establish a disability at the material time, the Complainant was terminated for his persistent poor performance. The Employer had a reasonable, non-discriminatory explanation for the termination of the Complainant's employment unrelated to his bodily functions.

Lessons for Employers

  • Poor hygiene and body odour can be a real problem in the workplace and it can be effectively managed. Employer's should ensure this issue is addressed respectfully but directly, and that any discussions and resolutions are documented.
  • The employer should inquire if there is a medical condition causing the poor hygiene and body odour, or if the poor hygiene and body odor is related to any other protected grounds. If so, it will give rise to the duty to accommodate.
  • If the poor hygiene or body odor is not related to a medical condition or another protected ground, the employer is at liberty to warn the employee that changes are required and discipline the employee if improvements do not occur.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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