Original Article from Miller Thomson LLP
by Laura Cassiani, Toronto
At issue in Ottawa Hospital v. CUPE Local 4000 was whether the employer’s new and comprehensive dress code policy which, amongst other things, prohibited visible and excessive body piercings and required employees to cover up large tattoos, was reasonable or whether it represented an unreasonable infringement on employees’ right of expression. The dress code policy was applicable to all bargaining unit employees, including nursing and housekeeping staff, as well as non-bargaining unit staff, contractors and physicians.
The prohibitions (along with the requirement that nursing staff wear lab coats when off their units, including during their breaks) were the focus of the union’s grievance.
The employer’s rationale for banning body piercings and requiring large tattoos to be covered up was based on improving patient care and ensuring patient confidence. According to the employer, “at least some patients are put off by health care providers sporting tattoos and piercings, and that if the hospital can save any patient some anxiety by requiring employees to cover tattoos and remove piercings, that is a small sacrifice for the employee.”
The employer argued that its priority was improving health outcomes for hospital patients who were described as largely elderly. According to the employer, “[boosting] the professional image of employees improves patient confidence, and that improves the quality of health care.”
The union took no issue with rules that addressed a health and safety or sanitation concern where there was supporting evidence. It also took no issue with a requirement that “hateful, profane or otherwise offensive” tattoos be covered up during work. However, the union argued that the employer’s prohibitions were not based on any objective evidence or legitimate employer need and as a result represented an unreasonable infringement on employees’ freedom of expression.
Arbitrator Slotnick was not persuaded by the employer’s arguments, in large part because he found no objective or persuasive evidence to establish any link between patient health outcomes and the dress code prohibitions. While Arbitrator Slotnick acknowledged that there may be a segment of the population who may continue to harbour negative stereotypes against individuals with tattoos or piercings, he did not accept that there was a “connection between these feelings and health care outcomes.”
He also noted that in a ten year period, the hospital recorded only two “unspecified concerns about tattoos” from patients, and therefore the employer appeared to be fixing a problem that did not exist.
According to Arbitrator Slotnick, in order to determine the reasonableness of the employer’s new dress code policy, it was necessary to balance the employer’s goal of achieving the best patient experience possible against employees’ rights as individuals. Ultimately, he found that a policy predicated on the stereotypes of a small segment of the population was no justification for the prohibitions.
As a result, the provisions of the dress code policy dealing with tattoos and piercings were declared void and unenforceable.
Lesson for Employers
The decision in Ottawa Hospital v. CUPE Local 4000 has implications for organizations that might seek to maintain a similar policy for their unionized employees.
It is well established that, in unionized environments, employer-imposed workplace rules must pass the standard of “reasonableness”. The criteria for establishing “reasonableness” in this context were set out in the seminal case of Re KVP Co. Ltd. (“KVP”).According to the KVP criteria, a unilaterally imposed employer rule must generally be clear and unequivocal, consistently enforced and not unreasonable. In addition to the reasonableness test, workplace rules must also comply with the terms of a collective agreement and any statutory obligations (such as human rights legislation).
In some circumstances, a dress code policy that imposes significant limits on individual freedom of expression may be enforceable. In each case, it will depend on what is reasonable in the circumstances, including a review of the need or concern the employer is trying to address. For organizations that might seek to adopt such a policy, it will be important to consider whether the policy is tied to the achievement of the organization’s purpose and whether it is reasonable in the circumstances. There may also be human rights considerations that will apply in some cases.
Miller Thomson’s Labour and Employment lawyers can assist in reviewing and advising on workplace policies, including dress codes.
This is a publication of Miller Thomson's Labour and Employment group. We encourage you to forward this email to anyone who might be interested. Complimentary subscriptions to this and other Miller Thomson publications are available by clicking here. Your comments and suggestions are most welcome and should be directed to emarshall@millerthomson.com.
Photo Credit - photo added by HR Options
No comments:
Post a Comment