Barefaced discrimination? Police Scotland’s new clean shaven policy draws criticism from HR professionals

Mar 18, 2023

Police Scotland recently announced that all frontline officers will have to shave their beards and moustaches under a new ‘clean shaven’ policy – but is it legal to demand this of employees? Here are some tips for HR professionals on navigating this tricky situation.

Officers in Scotland face a unique challenge as their employer is considering outlawing facial hair, a suggestion that has raised much ire in some quarters.

This new rule will apply to any police officer in Scotland who has to use an FFP3 face mask for work. Apparently, facial hair makes these protective masks less effective. So, the police are saying the move is a health and safety measure.

The announcement has received backlash from staff who feel the policy is ‘discriminatory’ and a ‘breach of human rights’. Police Scotland has said it will have a full consultation before the rule is in place.

The question is – does any employer actually have the right to ban facial hair at work? If so, what are the risks of having a blanket ban?

There's no law to say that businesses can or can't ask staff to be clean shaven. You could ban facial hair at work, however, if there's no other possible way of getting around it.

Even if the ban is in your customer's interest, you should still act fairly.

In some jobs, a clean shaven rule might be necessary. For example, those who work in construction might need to wear masks in dusty environments. If someone's facial hair prevents their mask from fitting properly, a health risk is a good enough reason to ask staff to shave.

If you have a blanket ban on facial hair, an employee could accuse you of indirect discrimination.

That might be the case if your employee doesn't shave their facial hair for a religious or medical reason.

You should check if your policy wording clearly states that employees must be clean shaven.

By law, it is indirect discrimination to follow a practice that disadvantages someone who has a protected characteristic, like a religion or belief.

For instance, for people who observe the Sikh faith, having a beard is sacred to their religion. So, asking them to shave could give them grounds to claim religious discrimination.

Some people also suffer from skin conditions that make shaving very painful. So, asking someone to shave and worsen their condition could amount to disability discrimination.

That's why if your employee doesn't shave because of a medical or religious reason, you should exempt them from the rule or try to find an alternative option.

You can, but you’ll need to tread carefully.

There was a tribunal case where a practising Sikh man won a case against a recruitment agency for their blanket ‘no-beard’ policy. The agency provided work at high-end hotels.

Sometimes, having a strict ‘one rule that applies to all’ can be risky (unless you can justify it and prove why it's necessary).

The agency told Mr Sethi in his induction that beards were not allowed because they didn't meet the agency's ‘standards of appearance’ and went against the clients’ wishes.

Even though Mr Sethi told the agency he couldn't shave his beard because of his religion, they didn't offer him work because of the policy.

A tribunal ruled this was indirect discrimination because the agency could not objectively justify this ban. That's because they hadn't taken any steps to handle the ‘no beard’ request in a non-discriminatory way.

They hadn't spoken to clients about the discriminatory risk and whether they would make an exception for religious faith.

So even if the ban is in your customer's interest, you should still act fairly, which means you should do everything you can to make allowances for religious or medical reasons. The same goes for any other protected characteristics.

If your employee refuses to shave for a medical or religious reason, you cannot force them to shave. You should either make an exception or try to find a suitable alternative.

Let's say your workers prepare food - you could ask them to use a beard net if they’d rather not shave.

Be clear about a clean shaven rule in your dress code policy. Don't leave any room for misunderstanding.

If your employee refuses to shave for any other reason, it depends on whether they’re actually breaching your dress code policy and if they have a protected characteristic. You should check if your policy wording clearly states that employees must be clean shaven, so there's no room for misinterpretation.

If your company policies and contracts clearly state the ban and your employee still refuses to shave, you could take disciplinary action.

If you were thinking of setting up a clean shaven rule, it's a good idea to first carry out an equality impact assessment. This will help you identify staff who have protected characteristics. So, you can see if the ban would discriminate against them.

Then, you can take steps to make changes where necessary.

Be clear about a clean shaven rule in your dress code policy. Don't leave any room for misunderstanding. Trying to enforce a rule is a lot easier (and safer) when you have a robust policy to back it up.

On a final note, consider whether your business really needs a blanket ban. Sometimes, having a strict ‘one rule that applies to all’ can be risky (unless you can justify it and prove why it's necessary).

That's why it's always important to consider employees on a case-by-case basis. Never make assumptions. Instead, make every effort to take a non-discriminatory approach when you uphold your company standards. In the long run, doing this will help you do right by your staff and protect your business from legal risk.

If you enjoyed this, read Employee experience: why less is more when it comes to HR policy.

A thought leader on HR and employment law; Kate is the Director of HR Advice and Consultancy at global employment law consultancy, Peninsula.

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