Dressing to discriminate - corporate dress codes and discrimination

Mohsina Chenia

Section 187(1)(f) of the Labour Relations Act, No 66 of 1995 (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 but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.

In the context of automatically unfair dismissals, an employer will be able to prove that a dismissal is fair if it can show that the reason for the dismissal was based on an inherent requirement of the particular 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.

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).

The Supreme Court of Appeal had to determine whether the failure by employees to adhere to the employer's dress code could result in their dismissals and whether same amounted to an automatically unfair dismissal under s187 of the LRA. The Department of Correctional Services (Department) dismissed a number of their male correctional service officers who refused to cut their dreadlocks when instructed to do so.

The question was complicated further when the employees raised the issue of discrimination as being central to their dismissals. According to the Department's dress code, male employees were prohibited from wearing dreadlock styled hairstyles, whereas dreadlocks could be worn by female officers.

Rastafarians

The dismissed male officers claimed that their dismissals were automatically unfair in terms of s187(1)(f) of the LRA. The dismissed officers claimed that they had been discriminated against on the basis of their religious beliefs, as some of them were in fact Rastafarian.

Others claimed discrimination against their cultural beliefs as they were obeying their ancestors calls to become traditional healers in terms of Xhosa culture thereby necessitating the dreadlock hairstyles.

The Department argued that the discrimination was justifiable because the Department had sought to eliminate the risk posed by the male officers who subscribed to religious beliefs that promoted the use of dagga. The Department argued further that the warders who wore dreadlocks were susceptible to manipulation by inmates and that this would result in them smuggling dagga into the correctional centres, whereas women did not pose the same problem.

The Supreme Court of Appeal confirmed that once discrimination on a listed ground is established, unfairness is presumed unless the employer proves the contrary. 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 indicate that the employees' hairstyles detracted from their work performance or rendered them susceptible to manipulation by prisoners. Furthermore, there was no rational connection between the measure taken and its purpose.

In the premises, employers should ensure that the application of their disciplinary and other policies do not culminate in discriminatory practices. 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.