I am no medical or virus expert – commentators suggest that facial hair may allow water particles to escape protective masks which require a clean seal between mask and face (“FFP3 respirators”). If particles escape they could infect patients and other healthcare providers, and if particles enter then that jeopardises the health of the worker himself.
Many doctors, dentists and other professionals may well now choose to shave off their beard voluntarily or will follow an instruction by employers to be clean shaven to protect themselves and also patients. Many will look to source appropriate protection – to protect themselves and their patients.
Matters will require further consideration if employers are unable to source appropriate protection for staff with beards and those staff refuse to shave off their beard and state that that is because of personal or religious reasons.
Here are some of the issues to be considered by employers and employees.
Is the employer’s request lawful and reasonable?
Should employers take steps to accommodate staff who refuse?
Does it make any difference if a refusal by an employee to shave off a beard is on religious grounds?
If an employee wears a beard because of a religious duty (e.g. Sikh or Muslim), a requirement by employers for staff to be clean shaven may amount to indirect discrimination. Employers then have to grapple with the interaction and potential for conflict between health and safety obligations and equality rights.
- Did the employer apply a rule (to be clean shaven) to the employee of a particular religion as well as employees who do not share that characteristic?
- Did the rule put or would it put the employee and persons of that particular religion at a particular disadvantage compared to others?
- Can the employer show the rule to be a proportionate means of achieving a legitimate aim and that all other reasonable options and alternatives had been attempted?
- Controlling risks to staff and patient safety during a pandemic - that I would think could be argued to be a legitimate aim in these unprecedented times
- In the absence of any reasonable, available alternative such as different equipment or redeployment - is requesting that staff are clean shaven a proportionate means of achieving that aim? I would think that could be argued to be a proportionate means of achieving that aim but full details of each case would require to be considered to give a definitive view.
Article by Caroline Carr, Accredited Specialist in Employment Law and Partner @ BTO Solicitors LLP