Dress code in the workplace Jun 29, 2010

Questions often arise about whether an employer can enforce a dress code on employees. And the answer is – there is no simple answer. As with so many legal matters, the answer is influenced by the facts and the circumstances of each particular case. This article will attempt to provide some guidance.

Consider first, a workplace with a collective agreement governing a unionized workforce. A dress code is viewed as any other rule which management wishes to implement. It cannot be inconsistent with any provision of the Collective Agreement, it must be reasonable, it must be known to the employees and it must be enforced consistently. In assessing the reasonableness of dress codes, arbitrators balance the rights of employees and the rights of employers. Arbitrators recognize the right of the employer to require dress that is safe for the work being performed and also recognize that employers have the right to protect the image they wish to establish for their companies in order to promote their business interests.

The employee also has rights which come into play, especially where the dress or appearance the employer wishes to impose on the employee has an impact beyond the work place. Therefore rules against beards, facial jewelry, tattoos and so on, are often struck down by arbitrators since such rules intrude into employees’ lives outside of work. Arbitrators have required strong business justification, and solid evidence supporting that justification, from employers to support the validity of such rules. At the other end of the spectrum, where the dress code requires a uniform supplied by the employer to be worn, there are seldom issues raised about reasonableness, unless the “uniform” puts the employee in an embarrassing position – such as overly skimpy outfits for bar attendants.

While constraints do not exist to the same degree in non-unionized workplaces, reasonableness will still be a strong consideration in determining whether a dress code is enforceable. If an employee is dismissed for refusing to comply with an unreasonable dress code, a Court may find that because the rule relied on for dismissal was not reasonable, there was not cause for the dismissal.

There may be safety reasons behind a dress code. For example, it may be important or necessary to wear steel-toed safety boots, a hard hat, a butcher’s chain glove or other apparel necessary to protect against dangers or perils present in the workplace or associated with the job. Provided the requirements can be explained by the circumstances of the job and the workplace, a dress code involving or requiring safety-related clothing items should be enforceable.

Some employers require employees to wear a uniform. The reasons include business identity and ensuring consistency throughout the workforce. The uniform might include components considered necessary for the job or the workplace, for the safety of the worker or for reasons of hygiene, for example head covering or hair restraint for food service workers.

A significant issue in this regard is, can the employer force the worker to pay for all or part of the uniform? If specific attire has been determined by the employer, is it then appropriate for the employer to provide that attire? On the other hand, it may be reasonable to require the employee to care for the items, and return them on termination of employment.

Beyond the question of a uniform, the employer may stipulate the nature of attire that is required, or not permitted. For example, a professional office environment could require business suits or jackets and ties for men, and business suits, dress slacks, or skirts or dresses for women. Alternatively, jeans, T-shirts, sweat shirts and shorts might not be allowed.

The nature of the workplace, the obligation to have contact or work with clients or others, or the expectations of clients or others doing business with or having contact with the employer may influence or determine the nature of attire required or expected. In such cases, where the response to those influences is reasonable, a dress code will likely be enforceable.

With any dress code, if the rules or requirements result in discrimination, a duty to accommodate the affected employee(s) arises. Generally, dress codes or uniforms that have no safety component or rationale are easily capable of modification to accommodate an individual. In our increasingly diverse society and community, the opportunities to accommodate increase correspondingly. The Supreme Court of Canada has held that if required clothing has a health and safety purpose, it may be a reasonable occupational requirement. Further, to be such a requirement, it must be honestly imposed and be in the interests of the performance of the work. Even in such a circumstance, efforts must be made to accommodate an employee in some manner where appropriate.

In summary, an employer can utilize its management rights prerogative to introduce a dress code to the workplace, provided it is reasonable, in accord with the needs and standards surrounding the job and the business, and provides opportunities for accommodation as required by human rights considerations. A dress code that meets these tests and considerations should be enforceable.