Dressing to discriminate – corporate dress codes and discrimination
Discrimination is regulated by s6 of the Employment Equity Act, No 55 of 1998 (EEA), and prohibits both direct and indirect forms of discrimination in the employment arena. This also applies to how your employees dress.
According to s187(1)(f) of the Labour Relations Act, No 66 of 1995 (LRA), a dismissal is automatically unfair if the employer discriminated against the employee on arbitrary grounds and dismissed him because of these.
In terms of automatically unfair dismissals, you – the employer - will be able to prove that a dismissal is fair if you can show that the reason for the dismissal was based on an inherent requirement of the job. For example, it may be fair to exclude a person who does not speak Zulu if the job requires the person to only communicate in Zulu.
Are dress codes included in inherent requirements of the job?
One of the latest decisions dealing with this aspect was the decision of Department of Correctional Services and Another v Police and Prisons Civil Rights Union (POPCRU) and Others (2013) 34 ILJ 1375 (SCA).
Facts of the case
- According to the department's dress code, male employees were prohibited from wearing dreadlock-styled hairstyles whereas dreadlocks could be worn by female officers.
- The department dismissed a number of their male correctional service officers who refused to cut their dreadlocks.
- The Supreme Court of Appeal had to determine if the failure by employees to stick to to the employer's dress code could result in their dismissals and if this amounted to an automatically unfair dismissal under s187 of the LRA.
- The employees then raised the issue that discrimination was the central reason for their dismissals. The dismissed officers claimed that they had been discriminated against on the basis of their religious beliefs as some of them were Rastafarian.
- Others claimed it was discrimination against their cultural beliefs. They claimed they were obeying their ancestors’ calls to become traditional healers in terms of Xhosa culture which means adopting dreadlock hairstyles.
- The department argued that the discrimination was justifiable because it had sought to eliminate the risk posed by the male officers who subscribed to religious beliefs that promoted using marijuana. It argued further that the warders who wore dreadlocks were targets for manipulation by inmates and that this would result in them smuggling dagga into the correctional centres, whereas women did not pose the same problem.
Court’s decision
The Supreme Court of Appeal confirmed that once discrimination on a listed ground is established, unfairness is presumed unless the employer proves otherwise. A discriminatory practice can only be justified in terms of s187(2)(a) of the LRA, namely that the dismissal is based on an inherent requirement of the job.
The court held that no evidence had been led to show that the employees' hairstyles lowered their work performance or made them susceptible to manipulation by prisoners. Furthermore, there was no rational connection between the measure taken and its purpose.
As a general rule, an inherent requirement of the job will be a defence to a claim of discrimination provided that the inherent requirement has a bona fide, rational and commercial purpose.
| Mohsina Chenia is a director in the employment practice at Cliffe Dekker Hofmeyr and has vast experience in employment law. Mohsina began her career in employment law in 1993 as an associate at PSN Attorneys and was appointed as a director at the same firm in 1997. When PSN’s employment law department merged with Glyn Marais Attorneys in 2008, she practised as a director at that firm. She joined Cliffe Dekker Hofmeyr as a director in 2013. Mohsina has a BA LLB from the University of the Witwatersrand; a Certificate in Advanced Labour Law from the University of South Africa and she was admitted as an attorney in 1993. | |
 |
Nicholas Preston is a senior associate in the employment practice at Cliffe Dekker Hofmeyr. |
