Dress Your Workplace Attire Policy Appropriately

Previously printed in the LexisNexis Labour Notes Newsletter.

A management restriction on employees wearing blue jeans and shorts at the office was found by an arbitrator to be a contravention of the employer’s established workplace attire policy in Canadian Union of Public Employees, Local 1767 v. BC Assessment Authority (Workplace Attire Grievance), [2015] B.C.C.A.A.A. No. 67 (Dorsey) and the restriction was ordered to be rescinded.

Background

The employer, the British Columbia Assessment Authority (“BC Assessment”), conducts real property assessments throughout British Columbia for taxation purposes. BC Assessment operates 15 field offices throughout the province where property owners and other stakeholders can obtain information. On average, there are seven face-to-face counter inquiries per day per office.

In October 2010, BC Assessment adopted a Workplace Attire Policy (the “Policy”) which read, in part:

BC Assessment is recognized as a professional services agency and our image is communicated to the public and our clients in part by our employees’ attire.

… [I]t is our expectation that employees will come to work wearing appropriate and professional attire. Common sense, reasonableness and good judgment should prevail when selecting work attire that is appropriate for the intended activity and in accordance with WorkSafe BC and any other safety considerations.

In March 2014, management in the Kelowna office announced a general restriction on the wearing of blue jeans and shorts in the office at all times. Blue jeans were permitted on “Casual Wednesdays”. Blue jeans and shorts would continue to be acceptable for field work as long as employees complied with any relevant health and safety regulations. The union grieved the restriction.

Arguments

The union argued that the Policy did not permit local managers to impose blanket restrictions prohibiting blue jeans or shorts. According to the union, the Policy granted the employees a choice regarding whether and when to wear blue jeans or shorts. The union argued that the restriction was an unreasonable, unilaterally introduced employer rule. There was, the union said, no objective evidence to rationally justify the restriction.

The employer responded that it had the right to establish reasonable workplace attire rules. It maintained that professional attire is important for its image and credibility in work situations. It argued that some employees might not know what appropriate business casual attire is and might deliberately “push the envelope” by dressing in articles of clothing like a kilt, Hawaiian shirt and running shoes.

Decision

Arbitrator James Dorsey, Q.C. began his analysis by referencing the traditional test regarding management’s right to unilaterally make and implement workplace rules, KVP Co. Ltd. (1965), 16 L.A.C. 73 (Robinson). The KVP test was recently cited with approval by the Supreme Court of Canada in C.E.P., Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34.

The arbitrator held that the reasonableness of a unilaterally introduced employer rule that restricts an employee’s appearance, including choice of attire, involves a balancing of the legitimate business interests of the employer and the personal rights and autonomy of the employee.

Arbitrator Dorsey made reference to existing case law which holds that an employer must at the very least demonstrate that the appearance of its employees is important for the company’s image and could result in a loss of business. The arbitrator emphasized that objective evidence must be presented which amounts to more than mere “impressionistic” evidence that the employer’s legitimate interests will be adversely affected in the manner it predicts.

In this case, Arbitrator Dorsey found that management’s restriction on jeans and shorts limited the autonomy expressly given to the employees in the Policy. In so doing, management substituted its judgment for the judgment afforded to employees in the Policy and this fettered the employees’ exercise of good judgment.

Arbitrator Dorsey held that the employer’s reliance on generally accepted standards for business attire was insufficient to justify the limitation. There was no objective evidence that the wearing of blue jeans or shorts threatened or had some kind of prejudicial effect on the employer’s image. Accordingly, the blanket restriction in the Kelowna office was inconsistent with the Policy and was unreasonable. Arbitrator Dorsey ordered that the restriction be rescinded.

Fashioning a Dress Code

When implementing a unilateral workplace rule such as a restriction on workplace attire, employers must bear the KVP test in mind and ensure that the rule: (1) is consistent with the applicable collective agreement; (2) is reasonable; (3) is clear and unequivocal; (4) was brought to the attention of the employees affected before the employer acted on it; and (5) was consistently enforced since it was introduced.

Employers should be mindful of existing policies when unilaterally introducing workplace rules with respect to dress codes. It is important to ensure that any restrictions imposed on employees are consistent with any policies which might already be in place. If employers do intend on imposing such restrictions, they should have concrete, tangible evidence that business reputation and financial well-being would be adversely affected in the absence of the restrictions; the dress code may otherwise be held to be unreasonable and unenforceable. Remember when assessing the validity of such restrictions that arbitrators will balance the legitimate business interests of the employer against the personal rights and autonomy of employees.