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A row has broken out between construction firm Mears Group and trade union Unite over a ban on beards. The beard ban will be hugely controversial amongst many a man. The facial hair resurgence in recent years has been insuppressible; from designer stubble to the full on hipster mountain-man beard, a fuzzy face has become a common look. Of course everyone can agree that beards are a good look (I’m completely impartial, can you tell?)…

 

Well, Mears Group begs to differ. The construction firm communicated the shocking news to workers earlier this month, citing health and safety reasons; namely that workers must be shaven to “wear appropriate dust masks effectively”. Mears said that the measure was necessary in order that workers be safely fitted with a tight-fitting face mask when working in dusty environments. The Group’s health and safety director, Mark Elkington said that “every employer in the UK has a legal responsibility to ensure that employees working in dusty or otherwise potentially hazardous environments are properly protected and in recent years employers have been prosecuted for failing to fulfil this duty. The simple fact is that no dust mask can work effectively unless it forms a seal against the skin. That is not possible with a beard or even heavy stubble. If the Health and Safety Executive did a spot site visit and found workers wearing dust masks that were not sealed against the face then we would be liable to prosecution.”

However, it was confirmed that a goatee (not such a good look) “may be acceptable so long as it does not hinder the correct fitting of said dust masks”. Certain exceptions to the prohibition were also confirmed, including where a beard cannot be shaved for medical reasons and where a medical certificate can be provided confirming this. A further exception was where a beard is worn for religious purposes and where “a note must be provided by the church/mosque/synagogue/temple, etc.” Mears said that they took a “strong stance” on the matter and that anyone who failed to adhere to the policy would be subject to disciplinary action.

Mears Group’s motto is “making people smile”, but Unite certainly weren’t smiling when they learned of the beard block, describing it as “penny-pinching stupidity”. A Unite regional official for London said that “the arrogance of Mears is hair-raising. This is a highly delicate issue, which has huge cultural, religious and personal issues and where sensitivity should be the watchword. Instead members have been handed a decree from on high. This is clearly a case of Mears going for the cheapest option.” The Unite rep argued that there are other forms of dust masks available and “creating huge resentment and anger among your workforce is never the way forward. Mears needs to withdraw this decree and enter into a proper consultation with Unite and the workforce.”

Interestingly, issues concerning workplace appearance were in the spotlight around this time last year, but for somewhat different reasons. Regular readers of Stronachs Insights will recall an article concerning a receptionist who claimed she was sent home from work at a corporate finance company after refusing to wear high heeled shoes. The worker argued that the policy was discriminatory and following a public backlash, the firm decided to scrap the controversial dress code.

So, is the beard ban allowed? From an employment law perspective, one key issue when considering the legitimacy of the beard ban is whether there is any issue of unlawful discrimination.

There are various types of discrimination set out in the Equality Act 2010 (EA 2010) that apply to certain protected characteristics. “Religion or belief” is one of nine protected characteristics and this is likely to be one of the key considerations. Under the EA 2010, it is unlawful for an employer to discriminate directly by treating a worker less favourably than others because of their religion or belief. It is also unlawful to discriminate indirectly by applying a provision, criterion or practice (PCP) that disadvantages workers of a religion or belief without objective justification. It is likely that the latter will be most relevant. Facial hair is viewed by some in certain religions as obligatory. For example, there are schools of Islamic law which, among many other things, hold strong positions on beard length and the act of shaving.

As referenced above, Mears Group made certain exceptions to their ban, which is likely to mitigate the risks of a claim for discrimination being brought against them. However, hypothetically, if the firm had no such exception, there would be a risk that the ban would be a PCP which was indirectly discriminatory with respect to workers who held such beliefs. Mears Group may argue that it is objectively justified as a “proportionate means of achieving a legitimate aim”, i.e. the health and safety of workers. However, if other forms of suitable dust mask were available (and Mears were indeed simply “penny-pinching”) then such an argument would hold far less weight.  It would also be interesting if such a worker was, for whatever reason, unable to obtain a note which supported their belief. If Mears Group sought to enforce the ban or instigate disciplinary proceedings in these circumstances they may be on shaky ground. Other claims could arise, such a disability discrimination actions, depending upon whether the employee could claim they had a relevant disability which impacted on their shaving habits. However more broadly (and depending upon how devoted an individual was to their beard) one could even anticipate constructive dismissal claims if it could be argued that an unreasonably tough line was being taken by the employer on the issue, which many regard as an important question of freedom of expression and private life.

When formulating policy which impacts on appearance, it is important for employers to properly consider and make clear what the objectives of the policy are. Employers should be careful to keep potential issues of religious sensitivities in mind, as well as wider risks of discrimination and impact on employee personal preferences. Generally speaking, where the dress code is more flexible, it will give rise to fewer problems. Employers should consider whether any exceptions should apply, particularly where a worker raises concerns; however, it should also be borne in mind that an employer will not necessarily be acting unlawfully if it insists on the policy. A balancing exercise should be carried out in relation to the reason for the policy and the perceived disadvantage to the worker and whether the objectives can be achieved in a way which accommodates the worker.

Of course potential claims are not the only thing to be contemplated by employers when formulating policy which impacts on appearance. There are also wider considerations, such as employee relations, as identified by the Unite rep.

If you have any queries about the above issues, please get in touch with a member of the Stronachs Employment Team.

Rowan Alexander, Senior Solicitor

 

Chambers UK 2018

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