Member Article

It is generally understood that an employer has the authority to manage and control its employees to ensure its business runs smoothly. In exercising such authority, an employer can adopt and implement policies that govern how employees perform their work. In certain circumstances, an employer can even adopt a policy to control the physical appearance of its employees. However, this power is limited both by legislation and the employment contract. But what are the limits provided by the law with regards to this issue? A recent arbitral decision helped to answer this question.

In Commission scolaire des Samares¹, the policy adopted by the employer school board affected all teachers responsible for training future health professionals, primarily nurses and nurses aides. The policy provided the following: 

• a requirement that an employee have good personal hygiene;
• a prohibition against wearing a head covering (hat);
• a requirement that an employee’s hair colour be natural (dyed hair not permitted);
• a requirement that an employee’s nails be short, clean and unpolished (artificial nails not permitted);
• a requirement that an employee wear shoes which are closed and safe (low heels, non-slip with quiet soles);
• a prohibition against wearing jeans, shorts, mini-skirts and camisole-type tops;
• earrings, necklaces and other jewellery must be modest, solidly attached and covered;
• long hair has to be tied back;
• beards must be covered in certain circumstances.

Essentially, the employer adopted this policy to ensure that its teachers provided their students with positive guidance as they would eventually be required to follow similar rules as healthcare professionals.

The Arbitration Tribunal was asked to determine whether these policies were legal. In its analysis, the Tribunal discussed the various laws governing the individual freedoms of employees. First, the Charter of Human Rights and Freedoms² provides that every person has the right to freedom of expression, respect of his or her private life, and fair and reasonable conditions of employment. The Civil Code of Québec³ provides that every person possesses personality rights, such as the right to the inviolability and integrity of his or her person and the right to privacy.

The case law recognizes that an employer has the right to adopt rules regarding the physical appearance of its employees. However, in order for such rules to be valid, they must be justified by the pursuit of a serious and legitimate purpose. This will generally be found to be the case where the objective sought is the promotion or protection of workplace health and safety or the promotion of other legitimate commercial interests, such as the projection or maintenance of the company’s corporate image. The policy must also be reasonable, meaning that the employer must have acted sensibly and fairly in adopting it while giving consideration to the objective facts relevant to the quality of the services rendered by its employees. The employer must not act arbitrarily, indiscriminately, capriciously, under the guise of false pretenses, or in such a way as to infringe a right protected by law.

Since, in principle, employees retain their individual fundamental rights and freedoms even while at work, the aspects of one’s physical appearance are a priori protected by the right to privacy. It is therefore necessary that: (1) the employer’s objective in setting up rules relating to physical appearance be important and legitimate; and, (2) the means used to achieve this objective are rational and proportionate, that is to say as minimally intrusive as possible while curtailing as little as possible the fundamental right in question. Note that the employer has the burden of proof in this regard.