While employers may believe that they have a broad right to regulate what employees wear in the workplace, this is not the case. The question of what requirements an employer can impose on an employee’s appearance can actually be quite complex because the imposition of dress codes create a tension between an employee’s right to look the way they want and the employer’s business interest in regulating appearances. Unless an employer can provide an objective explanation of why the dress code is necessary, arbitrators typically find in favour of employees’ interests in self-expression.
In the unionized context, arbitrators will apply the KVP test (articulated in Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co. Ltd. (1965), 16 L.A.C. 73 (Robinson)) to determine whether to uphold a rule relating to appearances. That test sets out the following criteria for an enforceable rule:
- It is consistent with the collective agreement;
- It is reasonable;
- It is clear and unequivocal;
- It was brought to the attention of the employee(s) affected before the employer attempts to act on it;
- Where the rule is invoked to justify discharge, the employee was notified that a breach of the rule could result in discharge; and
- The employer has enforced the rule consistently since its introduction.
The question of the enforceability of a rule related to employees’ apparel was recently considered in Unite Here Local 40 v. Harrison Hot Springs Resort & Spa, 2012 CanLII 51820. In that case, the employer prohibited its employees from wearing footwear with a thick, curved rubber sole designed to tone lower body muscles. The employer issued the rule after an employee fell while wearing the shoes. The employee reported the incident and a member of the Occupational Health and Safety Committee investigated the risk of this type of footwear. She conducted internet searches and found materials related to this type of shoe alleging back and hip pain, Achilles injuries and class action lawsuits in the United States. She also contacted a representative of WorkSafeBC, who told her that this type of footwear was a new fad and that they did not have reliable statistics on the risk they presented. The Occupational Health and Safety Committee concluded that employees should not wear this type of shoe and the employer promulgated a rule prohibiting employees from wearing toning footwear at work.
The arbitrator held that in order to justify the ban on the footwear on the basis of health and safety concerns, the employer had to establish that there was a “substantiated risk to foot or other injury by wearing this type of shoe in some or all of the workplaces throughout the resort.” This required a thorough risk assessment to identify the hazard and the appropriate ways to eliminate and control the hazard. The arbitrator found that the Occupational Health and Safety Committee member’s investigation was informal and unstructured. As the employer had not undertaken a thorough risk assessment, the rule could not be justified. Therefore, the grievance was upheld.
Before implementing a dress code, employers should ensure that they will be able to prove both that the policy is meant to achieve a legitimate business interest and that the policy will in fact achieve that purpose. Employers should also consider whether there is a less intrusive way to achieve the same purpose. If so, it is unlikely that the dress code will be upheld. Above all else, the employer must be able to show that the dress code is reasonable.
Cox & Palmer
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