South Africa has no formal guidelines or regulations canvassing the often controversial topic of office dress code. However both the Employment Equity Act of 1998 (EEA) and the Labour Relations Act No 66 of 1995 (LRA) contain provisions outlawing discrimination and dismissals related to discrimination. What is deemed appropriate will be dictated by the industry and the individual nuances of the company itself but is always subject to anti-discrimination laws. Companies are permitted to introduce a company policy in respect of grooming and clothing standards required by employees in the workplace. This policy may be required owing to the nature of the industry or for the safety of the employees themselves.

What type of company policies are permitted?

Employee dress codes are permitted provided that the policy has “some justification in commonly accepted social norms” and is “reasonably related to the employer business needs.” (Carroll v Talman Federal Savings and Loan Association of Chicago)  If this standard is met the courts are reluctant to interfere with the policy as it falls within management’s prerogative. However, such policies must be carefully worded to ensure there is no unfair discrimination.

The South Africa Constitution and the Equality Act protect individuals against unfair discrimination and protects their rights to enjoy their culture and practice their religion and companies must be cognisant of this when drafting dress code policy.

Discriminatory dress codes

Discrimination is regulated by s6 of the EEA and prohibits both direct and indirect forms of discrimination in the employment arena. This applies to how your employees dress. A dress code would be considered discriminatory if it imposes stricter requirements on one group of employees than on others. An example of this would be requiring female staff to wear heels or for only male employees to wear uniforms. However, if there is justification for the discrimination such as requiring steel workers to wear safety helmets and glasses whilst not requiring the same from the office workers at the factory, this will be seen as rational and permitted. The courts will approach this from a rational perspective and assess the necessary business requirements of the company.

Right to culture and religion

Section 187(1)(f) of the LRA renders a dismissal ‘automatically unfair’ if the reason for that dismissal is that the employer unfairly discriminated against an employee on any arbitrary ground including race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

Case law on the topic of dress code in the workplace predominately focuses on dismissals related to alleged unfair discrimination. One of the leading cases on the subject, Department of Correctional Services and Another v Police and Prisons Civil Rights Union (POPCRU) and Others (2013) 34 ILJ 1375 (SCA) assessed whether the employees, male prison guards,  dismissal was directly related to their failure to adhere to the company grooming policy which did not permit male guards to wear their hair in dreadlocks.

The employees alleged that this was unfair discrimination on two grounds. Firstly, that it is discriminatory as no such rule was applied to female guards. Secondly, that Xhosa culture requires individuals to obey the call of the ancestors to become traditional headers which necessitates wearing their hair in dreadlocks.

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 the dismissal did amount to discrimination as the manner in which the male guards wore their hair did not detract from their work performance nor render them susceptible to manipulation by the prisoners.

Conclusion

Thus as a general rule, companies must be aware of the possibility that their dress code could be unfairly discriminatory and must ensure that what the dress code requires falls within the scope of an inherent requirement of the job and serves a bona fide, rational and commercial purpose.

This article was written by Alice Haddon, Candidate Attorney, Norton Rose Fulbright South Africa Inc

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