SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
(REPRESENTED BY WILLIAM FRY SOLICITORS)
- AND -
WILLIAM PETER O'BYRNE
(REPRESENTED BY NOONAN LINEHAN CARROLL COFFEY SOLICITORS)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act, 1998
2. The worker referred his case to the Court on the 8th of October, 2002, in accordance with Section 77 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 3rd of October, 2003, in Cork. The following is the Court's determination:
In this case, the complainant claims that he was dismissed in circumstances amounting to discrimination when he refused to wear a facemask at work or in the alternative to shave off his beard.
There is no dispute on the facts which can be summarised as follows:
The respondent has a dress code for staff which is set out in the staff handbook. There are different rules for men and women. In the case of men, the handbook provided “You should always be clean shaven”. It is, however, accepted that moustaches can be worn.
The complainant commenced employment with the respondent as a shop worker on 3rd November 2001. He wears a goatee beard and has worn it for upwards of 38 years. On the day he commenced his employment he attended at an induction meeting at which the policy of the respondent in relation to dress and appearance was explained. At this meeting, the complainant was told that it was acceptable to wear a beard provided that it was kept neat and tidy.
On or about 17th December, 2001, the personnel manager of the respondent met with the complainant and informed him that facial hair (apart from moustaches) was unacceptable. He was told that he should remove his beard or face dismissal. The complainant contacted his solicitor who wrote to the respondent asserting that this was in contravention of the Employment Equality Act, 1998, (the Act). The respondent did not reply to the solicitor.
In early 2002, the matter was again raised with the complainant and the instruction to shave off his beard was renewed. The complainant protested at this instruction. A number of meetings ensued between the complainant and management. It was then proposed that the complainant should wear a form of facemask, referred to as a snood, at all times while at work. In subsequent weeks the complainant was given such a facemask which he agreed to wear.
The complainant wore the mask for approximately one week. He then refused to wear it further because he claimed to have encountered a number of derogatory comments from members of the public and he felt that he had become a figure of fun. Following further meetings and the invocation of the respondent’s disciplinary procedure against him, the complainant was dismissed on 14th April, 2002.
It is accepted that the sole reason for the dismissal was the complainant’s refusal to wear a facemask or to remove his beard.
Submission of the Parties.
The complainant’s Solicitor submitted that the Court should consider this case in the context of the respondent’s dress code as a whole. He submitted that there was no corresponding restriction on women employees to that placed on the complainant. It was contended that when viewed in that context, the requirement that the complainant remove his beard or cover it by wearing a facemask was discriminatory and his dismissal for refusing to follow that instruction was unlawful.
Counsel for the respondent submitted that the impugned requirement could not be discriminatory because it could have no application in the case of women except to a degree which could be disregarded. It was contended that the complainant would have to show that the respondent's dress code involved differential treatment as between men and women, that is to say one dress code for men and another (more favourable) code for women on the particular issue of beards/facial hair.
Conclusions of the Court.
Counsel for the respondent contended that in order for a rule to be discriminatory, it must be capable of application to both sexes and is either applied to one sex only or applied differently to men and women. She submitted that the only exception to that rule is in the case of pregnancy. Counsel submitted that the requirement placed on the complainant to remove his beard or cover it at work could not be discriminatory since it could never be placed on a woman.
That line of argument may have some validity but it is misplaced in the instant case. The question of whether or not the complainant should be permitted to wear a beard, or whether he could be required to cover it, cannot be considered in isolation. It arises from the respondent’s dress code which is applicable to both men and women. It is in that context that the issues arising in this case must be considered.
Dress codes are common in many types of employment. They are intended to ensure that staff who interact with the public present an acceptable standard of neatness and grooming. They are particularly common in the distributive trade and supermarkets where the requirements can be further influenced by considerations of hygiene and food safety. Dress codes by their nature apply different rules to men and women and it would be absurd to suggest that they should do otherwise. Anti-discrimination law does not require that men and women be treated the same in every circumstance. What it requires is that they be treated equally.
Discrimination is classically defined as the application of different rules to comparable situations or the application of the same rule to different situations ( seeFinanzamt Koein- Altstadt v Schumacker  ECR 1-225). Applying that principle to whether or not a dress code is discriminatory, it is the Court’s view that the appropriate approach is to consider if it applies a common standard of neatness, conventionality and hygiene to both men and women and does not unreasonably bear more heavily on one gender than it does on the other. This requires that the code be looked at as a whole and not item by item and garment by garment. This is the approach adopted in England over many years. (seeSchmidt v Austicks Bookshops  IRLR 360andSmith v Safeways PLC  IRLR 456)
In considering whether a dress code operates unfavourably with regard to one or other of the sexes, the conventional standard of appearance is the appropriate criterion to be applied. Other factors to be considered are the relative degree of comfort or discomfort which one or other of the sexes may experience in complying with the code and the relative degree to which it impinges on the right of men and women to determine their own appearance, particularly where it extends outside the workplace (where it relates to such matters as hair length or in this case a beard). A clear distinction must also be drawn between rules which relate to appearance and those imposed by the requirements of hygiene and safety.
In the instant case, the respondent did not argue that the requirement for the complainant to wear a facemask or remove his beard was motivated by considerations of hygiene or food safety. Neither the complainant nor other workers of either gender who worked with him were required to wear covering for their head hair while at work. It appears that such a requirement relates only to those working in specific areas of the shop.
The complainant’s beard is neat and closely trimmed and could not reasonably be regarded as offending against the standard of conventionality which the respondent seeks to impose. Moreover, the requirement that the complainant wear a facemask at work went far beyond what is conventional, and the Court fully accepts that he presented as a figure of fun and ridicule whilst wearing it.
Taking the dress code as a whole, the Court is satisfied that it operated in the case of the complainant in a way which restricted his freedom to determine his own appearance to a significantly greater degree than it does in the case of women. This constituted unfavourable treatment on grounds of gender. The complainant was dismissed solely because he refused to comply with this code. It follows that the dismissal was discriminatory and unlawful.
Having considered the remedies available to it, the Court considers that the most appropriate remedy is an order for reinstatement. Accordingly, the Court orders that the complainant be reinstated in the position which he formally held with effect from the date of his dismissal and without loss of service, pay or other benefits.
Signed on behalf of the Labour Court
28th October, 2003______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.