Labour Court Database __________________________________________________________________________________ File Number: EED9210 Case Number: EEO937 Section / Act: S27EE Parties: PANTRY FRANCHISE IRELAND LIMITED - and - A WORKER |
Alleged discriminatory dismissal of the worker in contravention of Section 3 of the Employment Equality Act, 1977 in terms of Section 2 of that Act.
Recommendation:
The claimant in this case commenced employment with the Company in
October, 1991 working approximately 14 hours per week. He was
instructed on a number of occasions that he must conform with the
"appearance code" and have his hair cut above the collar. Despite
these instructions he refused to meet the requirement and ceased
to work for the Company from early December, 1991. There is
conflicting evidence regarding the termination of his employment -
the claimant alleges he was dismissed in contravention of Section
3(4) of the Employment Equality Act, 1977 while the employer
claims that he abandoned his employment.
The Court considered the following questions:-
- was the claimant discriminated against by the Company
requirement that he have his hair cut above the collar;
- if so, was the claimant dismissed, directly or
constructively, because he did not conform to this
requirement.
The Court accepts the Company claim that it is entitled to set
standards of dress and appearance for its employees which will
project the commercial image it seeks and ensure that the
necessary levels of hygiene are maintained. While the
requirements for such standards should be the same for male and
female employees they may differ in some respects between men and
women for business reasons allied to public perception. These
differences do not necessarily retain their justification over
time. Fashions of dress and appearance and their public
acceptability are constantly changing; For example, the wearing of
trousers by women would not have been acceptable in past times but
now the Company has an identical uniform for male and female
employees consisting of trousers and shirt.
The Court considers that the styles and length of mens hair is
another changing fashion and that, in these circumstances the
Company insistence on different hair-lengths for its male and
female employees has little commercial justification and would not
reflect the hair-fashion of the Company's customers.
The Company itself is satisfied that its regulations concerning
its women employees hair-style, which has no length limitations,
does not contravene its hygiene requirements. There is no case,
therefore, to justify more restrictive rules for male employees as
regards the wearing of their hair. Accordingly, the Court finds
that the requirement to have his hair cut above the collar
discriminated against the claimant contrary to Section 3(4) of the
Employment Equality Act, 1977 ('the Act').
It was not disputed that the claimant was directed on a number of
occasions to have his hair cut to the prescribed length and that
he failed to do so. However, there was conflicting evidence from
the claimant and the company concerning the circumstances under
which the claimant's employment ceased.
The Company argued that the manager had told the claimant that he
would not allow him work his next shift unless he had his hair cut
beforehand. He did not report again for work and the Company held
that he had in fact abandoned his employment. On the other hand
the claimant stated that he understood the manager's reprimand of
4th December to mean that he was sacked because he had not met the
hair-length requirements. Accordingly he did not report for work
again.
There was no direct evidence to confirm what exactly was said by
the Manager but it is clear to the Court from the evidence
presented that the Company was not prepared to allow the claimant
to work again until he had his hair cut to standard.
It is also clear to the Court that as the claimant did not intend
to have his hair cut in the fashion required by the Company it was
not unreasonable for him to regard the Manager's edict as a
dismissal.
As the dismissal occurred in circumstances in which the Company
had been in breach of Section 3(4) of the Act, the Court will
award compensation to the claimant. The Court notes, however,
that the claimant contributed to his own dismissal. He had
reasonable option of retaining his employment while accepting the
Company's requirement under protest, and processing a claim of
discrimination under the Act. He would not have been at any
permanent disadvantage as his hair would have grown again.
Having regard to all the circumstances of the case, and having
regard to the contributory element by the claimant the Court will
make an order directing the Company to pay the claimant a sum of
#200 by way of compensation.
Division: Mr Heffernan Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
EED9210 ORDER NO EEO793
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: PANTRY FRANCHISE IRELAND LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
A WORKER
SUBJECT:
1. Alleged discriminatory dismissal of the worker in
contravention of Section 3 of the Employment Equality Act, 1977
in terms of Section 2 of that Act.
BACKGROUND:
2. The Company operates 11 McDonalds hamburger outlets on a
franchise basis in Dublin and employs approximately 865 staff on a
full and part-time basis. The worker concerned commenced
employment with the Company at its Grafton Street Branch on a
part-time basis (approximately 14 hours per week) on the 22nd
October, 1991. He was given an orientation course prior to
commencing work which dealt with various issues relating to
Company policy such as personal appearance, hygiene etc.
Reference was made to workers' length of hair which was in
accordance with Company regulations, collar length for males and
for females kept away from the face and styled close to the head.
Females were allowed to wear hair nets. The worker concerned, who
had long hair, was advised at the commencement of his employment
and subsequently on numerous occasions to get a regulation hair
cut in accordance with Company standards. He did not do so. On
the 2nd December, 1991 the worker was advised by Management that
he would not be allowed to commence his next shift (4th December)
unless he get a hair cut to Company standard. On the 4th
December, the worker with his hair still long, reported for duty.
He was advised by Management not to return to work until he
obtained a regulation hair cut. He refused and left the premises.
He alleges that he was unfairly dismissed. The Company rejected
the allegation stating that the worker abandoned his position.
2. On the 3rd June, 1992 the worker referred the complaint to the
Labour Court under Section 27 of the Employment Equality Act,
1977. The Court investigated the complaint on the 8th December,
1992.
WORKER'S ARGUMENTS:
3. 1. The worker did have his hair cut on at least three
occasions during the period of his employment. He accepts
that his hair was longer than the permitted collar length
provided for in Company regulations in respect of male
employees. The worker felt that this was a discriminatory
requirement vis a vis female workers. However, the worker did
wear a hair net for a period of time the same as female
employees. He was quite prepared to wear a hair net which
kept his hair tidy. During the period of his employment, and
while wearing a hair net, he never received complaints from
customers. He saw no reason why he could not continue to wear
a hair net the same as female employees.
2. On the 4th of December, 1991 he reported for duty,
clocked in and commenced work. Shortly afterwards he was
advised by Management to get a regulation hair cut. He
refused and was arbitrarily dismissed from the employment. He
subsequently collected his wages and his P.45 was forwarded by
post to him at a later stage.
3. The worker was dismissed from the employment because he
refused to wear his hair at collar length in accordance with
Company regulations. Because of this he was treated less
favourably in relation to his conditions of employment than
female workers who are entitled to wear their hair long and
are allowed to wear a hair net. The worker has been
discriminated against in terms of Section 2(a) and
constructively dismissed in terms of Section 3 of the
Employment Equality Act, 1977.
COMPANY'S ARGUMENTS:
4. 1. When the worker was interviewed for the position on
October, 20th specific reference was made by Management to
Company rules regarding hair length and tidiness. He
understood and accepted Company regulations (including the
rule that, for male workers, hair would be cut to collar
length). He was recruited under those conditions. On
numerous occasions during the period of his employment
Management spoke to the worker about his long hair and the
necessity to obtain a regulation hair cut. He ignored these
instructions and in mid November management advised him to
wear a hair net.
4. 2. Having again been warned on the 2nd December to get a
regulation hair cut he reported for duty on the 4th December
and was told by Management that he could not work his shift
unless he obtained a regulation hair cut. He agreed to do so
and Management understood that he was returning to work having
obeyed this instruction. He did not return to his duties and
subsequently advised the Company that he would not be
returning to work.
3. The Company did not dismiss the worker. He left the
employment of his own volition. The Company operates a clear
and defined disciplinary procedure including formal verbal and
written warnings prior to dismissal and this is rigidly
adhered to. (Details supplied to the Court). No such
procedure was followed in the case of the worker concerned.
Company policy also provides that a dismissed worker receives
his pay cheque and P.45 within 48 hours. In this case the
P.45 and final pay cheque were issued to the worker on the
12th January, 1992.
4. The Company contends that the worker was neither
constructively dismissed nor discriminated against. The
Company was not in breach of the Employment Equality Act,
1977. Every employer has a right to set standards of conduct
and performance to meet the requirements of the enterprise In
the case of providing a food service to the public, standards
of hygiene and appearance are of paramount importance. The
Company has clear standards in relation to hair length and
tidiness for males and females. These standards are
reasonable on the basis of the image the Company requires its
staff to present to the public. The worker concerned was
fully aware of, and accepted these standards and was recruited
on that basis.
ORDER:
The claimant in this case commenced employment with the Company in
October, 1991 working approximately 14 hours per week. He was
instructed on a number of occasions that he must conform with the
"appearance code" and have his hair cut above the collar. Despite
these instructions he refused to meet the requirement and ceased
to work for the Company from early December, 1991. There is
conflicting evidence regarding the termination of his employment -
the claimant alleges he was dismissed in contravention of Section
3(4) of the Employment Equality Act, 1977 while the employer
claims that he abandoned his employment.
The Court considered the following questions:-
- was the claimant discriminated against by the Company
requirement that he have his hair cut above the collar;
- if so, was the claimant dismissed, directly or
constructively, because he did not conform to this
requirement?
The Court accepts the Company claim that it is entitled to set
standards of dress and appearance for its employees which will
project the commercial image it seeks and ensure that the
necessary levels of hygiene are maintained. While the
requirements for such standards should be the same for male and
female employees they may differ in some respects between men and
women for business reasons allied to public perception. These
differences do not necessarily retain their justification over
time. Fashions of dress and appearance and their public
acceptability are constantly changing; For example, the wearing of
trousers by women would not have been acceptable in past times but
now the Company has an identical uniform for male and female
employees consisting of trousers and shirt.
The Court considers that the styles and length of mens hair is
another changing fashion and that, in these circumstances the
Company insistence on different hair-lengths for its male and
female employees has little commercial justification and would not
reflect the hair-fashion of the Company's customers.
The Company itself is satisfied that its regulations concerning
its women employees hair-style, which has no length limitations,
does not contravene its hygiene requirements. There is no case,
therefore, to justify more restrictive rules for male employees as
regards the wearing of their hair. Accordingly, the Court finds
that the requirement to have his hair cut above the collar
discriminated against the claimant contrary to Section 3(4) of the
Employment Equality Act, 1977 ('the Act').
It was not disputed that the claimant was directed on a number of
occasions to have his hair cut to the prescribed length and that
he failed to do so. However, there was conflicting evidence from
the claimant and the company concerning the circumstances under
which the claimant's employment ceased.
The Company argued that the manager had told the claimant that he
would not allow him work his next shift unless he had his hair cut
beforehand. He did not report again for work and the Company held
that he had in fact abandoned his employment. On the other hand
the claimant stated that he understood the manager's reprimand of
4th December to mean that he was sacked because he had not met the
hair-length requirements. Accordingly he did not report for work
again.
There was no direct evidence to confirm what exactly was said by
the Manager but it is clear to the Court from the evidence
presented that the Company was not prepared to allow the claimant
to work again until he had his hair cut to standard.
It is also clear to the Court that as the claimant did not intend
to have his hair cut in the fashion required by the Company it was
not unreasonable for him to regard the Manager's edict as a
dismissal.
As the dismissal occurred in circumstances in which the Company
had been in breach of Section 3(4) of the Act, the Court will
award compensation to the claimant. The Court notes, however,
that the claimant contributed to his own dismissal. He had
reasonable option of retaining his employment while accepting the
Company's requirement under protest, and processing a claim of
discrimination under the Act. He would not have been at any
permanent disadvantage as his hair would have grown again.
Having regard to all the circumstances of the case, and having
regard to the contributory element by the claimant the Court will
make an order directing the Company to pay the claimant a sum of
#200 by way of compensation.
~
Sigend on behalf of the Labour Court
Kevin Heffernan
27th July, 1993 ----------------
T O'D/U.S. Chairman