Freedom of Expression: Dress Code in the Workplace v Freedom of Expression
Freedom of Expression: Dress Code in the Workplace v Freedom of Expression
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Companies use dress codes in the workplace to make employees aware of what the organisation accepts as appropriate workplace clothing. Companies use dress code/ appearance policies to communicate and to set expectations regarding the image they want to convey to their customers. The company’s employees are part of the company image and how they appear should be in line with the drafted dress code policy (A dress and appearance policy should be clear and specific and should not be discriminating) . Permitted dress code in the workplace should not discriminate or violate the employees’ right to freedom of expression.

According to Karen Ainslie (ZA) on September 6, 2018,”South Africa has no formal guidelines or regulations canvassing the often controversial topic of dress code topic in the workplace. 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”.

A dress code is considered discriminatory if it puts out harsh demands on one group of employees than others. Subjective dress code in the workplace should be based on employee work stations and must be backed up by rational reasoning, especially if the health and safety of the employees are concerned based on their work stations. For example, Miners are required to wear safety helmets and protective clothing while on duty but the same is not required from office workers, unless they have to go underground . (Karen Ainslie (ZA) on September 6, 2018)

Section 187(1)(f) of the LRA declares 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”.

In the case of Department of Correctional Services and Another v Police and Prisons Civil Rights Union (POPCRU) and Others (2013) 34 ILJ 1375 The Supreme Court of appeal 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 follow the call of the ancestors to become traditional healers which needs them to have their hair in dreadlocks.

In the above case the court held that there was no rational connection between purported purpose of the discrimination and the measure taken. The court also stated how the evidence presented to the court did not shown how the department of correctional services would suffer an unreasonable burden if it had exempted the respondents.

Conclusion

At the same time, 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.

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