By Simon Martin
I noticed the first mince pie display in my local supermarket earlier this month. As we hurtle towards the festive period (has it started already?) we’ll soon be arriving at “Movember”. To the uninitiated, it’s a month when men grow moustaches, from a standing start, to raise money and awareness for men’s health. That is all aside from the advent of the “hipster”. The key aspects of hipster spotting are to look for an interest in craft beer, independent coffee shops, tight jeans and, most tellingly, they’ll be sporting a long beard. All of this brings me seamlessly(ish) onto the vexed question of facial hair at work.
I recently had to advise a manufacturing client on whether they could force their employees to have a close shave. I understand that it’s an all-male workforce in this particular bit of their business. They have one production process whereby there are dangerous levels of a particularly nasty chemical in the air and so they insist on all employees in that department wearing a specially designed face mask. The key fact is that in order for the face mask to work properly, i.e. keep out the chemicals, it has to make a proper seal on the employee’s face. If the employee has any facial hair beyond very short stubble it affects the effectiveness of the seal and the chemicals enter the employee’s bloodstream.
That is one area where my advice is fairly easy to formulate, i.e. that employer can rely on its health and safety obligations and more generally its duty of care to provide a safe working environment, to require that its employees are clean shaven. This can override any objections from employees who are particularly fond of their beards.
But what about other less clear cut situations? (excuse the pun).
There is not a huge amount of case law on this area that’s made it to the appeal courts and been reported, but there is one: Mr Mohammed was employed by West Coast Trains Ltd (West Coast) as a customer services assistant. He was a Muslim and he said that his religious beliefs required him to have a beard of at least one fist’s length. (As an aside, I understand there is no mention of the obligation to wear the beard in the Koran; however, Muslim men wear a beard as a sign of piety, i.e. as a sign that they are trying to walk in the path of the prophets). West Coast’s uniform standards required employees to keep their beards neatly trimmed and smart. There was no health and safety requirement here, just a desire to have a particular sort of “corporate” appearance.
During his job interview, Mr Mohammed was asked if he would trim his beard. After being appointed, the issue of the length or tidiness of his beard was subsequently raised a number of times between August and October 2003. (The tribunal subsequently found that the issue had been resolved by late September or early October 2003.)
He brought a claim for direct and indirect religious discrimination in respect of his unhappiness with the discussions over his beard length. The Tribunal found that asking Mr Mohammed to trim his beard was not an act of religious discrimination. Essentially they found that this was a standard request to all employees regarding uniform and that request was justifiable. The EAT upheld the decision.
If we are to draw any lessons from the above situations it is, as usual, to ask yourself “why do we want to impose this rule or policy, and is it worth it?” (That is the question!) If it is a sensible step and you have a sound basis for wanting to do it then you should have a decent chance of being able to justify such rules if they are ever challenged.
Associate Solicitor, Menzies Law