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The Caterer

Dress smartly to avoid a legal scrum

27 August 2010
Dress smartly to avoid a legal scrum

As any employer will agree, good staff appearance is essential, especially those in a customer-facing role. But where do you stand legally if an employee regularly turns up for work with visible sports injuries, asks Sarah Gudgin.

THE PROBLEM

One of my front of house staff is a keen amateur rugby player, and by all accounts rather good. However, he does tend to come into work covered in bruises and the occasional black eye and that does not give a particularly good impression. I am not too sure what I can and cannot do.

THE LAW

Generally, it is acceptable for employers to determine the personal appearance of their employees while at work. Many employers regulate their staff's personal appearance by way of a dress code. For front of house staff this is often no more than a requirement for staff to wear a particular uniform, but can include other aspects of personal appearance such as how they wear their hair or whether they are permitted to wear jewellery or have visible tattoos.

Currently legislation does not provide protection for employees who feel they have been less favourably treated or victimised because of their personal appearance, unless this treatment is because of their sex, race, disability, age, religion or belief or sexual orientation.

Although it is difficult to think of any discrimination claim arising from your member of staff being required to report for work without visible bruising, issues might arise if he were to be disciplined or dismissed for turning up for work with a black eye or other blemishes.

If your employee has one year's continuous employment and he brought a claim of unfair dismissal in these circumstances, the tribunal would consider the reasonableness of your decision and whether you carried out a fair procedure. You would need to show the business need that justified you placing such a restriction on your employee's appearance, which may be a high hurdle to overcome.

EXPERT ADVICE

Much depends on the nature and extent of the bruising, and whether it is visible. The rugby season is limited in time, so it is unlikely that the bruising will be a problem all the time.

You should speak to your member of front of house staff and explain your concerns about his appearance and how, as a business, it is extremely important to create the right impression.

Explore with your employee whether there is anything you can both do so that he doesn't work shifts immediately after a rugby game. This will, of course, very much depend on whether he works full-time or part-time and whether he is able to change shifts with other employees if he is visibly bruised following a game.

You may also wish to discuss with him whether there is any way of minimising the bruising by wearing protective headgear during his matches. Depending on any uniform that he is required to wear it may be possible for him to cover up much of the visible bruising with clothing or make-up.

Generally, having an informal discussion with the employee will be sufficient and there will be no need to go through a formal procedure.

Should the bruising be severe, or the employee refuses to try to mitigate the impact of the bruising on his appearance, it may be appropriate to move to a disciplinary process.

CHECK LIST

â- Try to accommodate their specific needs where possible, for example, allowing them to change shifts with a colleague.

â- Introduce a personal appearance and dress code policy and consider involving staff in drawing up the policy.

â- Communicate the policy to all employees, highlighting any penalties for non-compliance.

BEWARE!

When putting together a personal appearance and dress code beware of any potentially discriminatory requirements. You should also make sure that any requirements placed on employees do not pose any risk to their health and safety. For example, you might breach health and safety and sex discrimination legislation if you were to require your female employees to wear high heels at work.

Remember compensation for successful discrimination claims is uncapped.

CONTACT

- Sarah Gudgin, solicitor, Boodle Hatfield

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