Facial Hair, Face Fit Testing and Respiratory Protective Equipment (RPE)

Many workers have been choosing to grow stubble and beards as part of their look of choice and because of religious beliefs for time immemorial. Some people also choose to wear a beard to cover facial scarring or for other health reasons, or to feel more inclusive when they are transgender.

When confronted with this in the workplace for health and safety reasons, generally, workers who are asked to shave their beards because of the need to protect them will do so; but there will be times when some workers will refuse. What options does an employer have in that situation and what is the overarching priority of the employer? The health and safety of the worker or the worker’s preferences?

This is a particular issue for the construction and manufacturing sectors, where often dust is created that cannot be removed or suppressed adequately. Respiratory Protective Equipment (RPE), usually a specified face mask, will then be required. In such circumstances it is the Employers duty to identify the need and provide suitable RPE, and it is the workers duty to use it as instructed.

If there is a legally protected reasons for the facial hair, such as a religious requirement, will the requirement to make them shave be deemed a reasonable or proportionate means of achieving a legitimate aim; the legitimate aim being to protect the worker’s health and safety at work? Or should the employer be looking at other alternative options such as a more expensive hood or an alternative role. In the case of the facial hair being a personal choice, if the worker refuses to be clean shaven, is it incumbent for the employer to purchase much more expensive RPE (a hood), costing hundreds of pounds more and potentially meaning it may have to spend tens of thousands if others take the same stance and personal choice?

Or can the employer, having taken or considered all other reasonable steps, initiate disciplinary proceedings and potentially dismiss an employee if they refuse to comply with the reasonable request of the employer and fail to follow health and safety requirements? Possibly. We explore these issues in this article, attempting to reconcile the Health and Safety requirements with the practical needs of the business/employees and balance these sometimes competing issues with the employer’s duties and risks under employment law.

Health and Safety

Where hazardous gases, airborne particles or other substances can potentially cause harm to workers, employers responsible for their health and safety will need to take all reasonable steps to protect them.

Where RPE is used, it must be able to provide adequate protection for individual wearers. RPE can’t protect the wearer if it leaks and a major cause of leaks is poor fitting; tight-fitting facepieces need to fit the wearer’s face to be effective.

As people come in all sorts of shapes and sizes it is unlikely that one particular type or size of RPE facepiece will fit everyone. Fit testing will ensure that the equipment selected is suitable for the wearer.

RPE fit testing should be conducted by a competent person – you should take steps to ensure that person who carries out the fit test is appropriately trained, qualified and experienced, and is provided with appropriate information to undertake each particular task.

For more detailed information on face fit testing, read our article.

What employers need to know

The best time to do fit testing is at the initial selection stage, when individual users can be given a choice of adequate models of RPE. You should ensure that the make, model, type and size of facepiece that they wore when they had their successful fit test is made available for their use. If an employee wears more than one type of tight-fitting facepiece, then each type of facepiece should be fit tested.

The best way to set out expectations is to have a clear RPE policy.

A note on facial hair

Many masks rely on a good seal against the face so that, when you breathe air in, it is drawn into the filter material where the air is cleaned. If there are any gaps around the edges of the mask, ‘dirty’ air will pass through these gaps and into your lungs. It is therefore very important that you put your mask on correctly and check for a good fit every time.

Facial hair – stubble, moustaches, long sideburns and beards are all included – make it impossible to get a good seal of the mask to the face.

If you are clean-shaven when wearing tight-fitting masks (i.e. those which rely on a good seal to the face), this will help prevent leakage of contaminated air around the edges of the mask and into your lungs. You will therefore be breathing in clean air, which will help you stay healthy.

If there are good reasons for having a beard (e.g. for religious reasons), alternative forms of RPE, that do not rely on a tight fit to the face, are available.

Employment Law

As well as their duty to health and safety of the employee, the employer also has a requirement to treat its workers reasonably, fairly and not in a discriminatory manner. What will be classed as discriminatory will depend on the treatment of the worker and whether it relates to a protected characteristic, under the Equality Act 2010. The choice to have a beard or facial hair for fashion reasons is a not protected under the Equality Act. Each case should  be assessed on its own merits and a reasonable and fair approach should always be taken, where the rights of the employee should be balanced with the responsibility of the employer.

Scenarios

1 – A 30 year old male worker refuses to be clean shaven and cites personal choice. He claims his personal choice is as important as another person’s religion and by either not purchasing the more expensive hood or by taking any other action against him he is being discriminated against or treated unfairly. He comes to work wearing a standard mask which has not been face fitted.

The employer can reasonably ask him to have face fit testing and use the required mask as their duty of care towards his health and safety takes precedent. There is no obligation on the employer to buy the more expensive hood, although they could agree to share the cost or the employee could pay for his own hood. The employer should speak to him and try to get him to agree. If he continues to disagree, he can be suspended if alternative work is not available and put through a disciplinary procedure and be given a warning initially to see if that improves the situation. If it doesn’t and he continues to refuse, he could at some point be dismissed for failing to follow a reasonable management instruction and/or a serious breach of health and safety rules.

2 – A Sikh man (and other religions such as Islam or another protected belief) decides to grow his beard for religious reasons and argues that his beard is a manifestation of his belief/faith. He agrees to have the hood instead. The employer should discuss his reasons and accommodate his request as for a Sikh man, the beard can be a manifestation of his belief. It is reasonable for the employer to purchase the hood for the employee. If the employee disagrees and does not consent to wearing the hood, the employer should look at other roles that he could do. If there aren’t any, there may be a situation where even though the beard is a manifestation of the faith and protected by equality law, following a fair procedure and potentially dismissing may be a proportionate means of achieving a legitimate aim: the aim to keep all staff safe at work. This would be a last resort rather than a way to avoid buying the more expensive equipment, although that could be justified in certain circumstances, where the cost is prohibitive for that particular employer.

3 – A man with facial scarring has stubble/a beard to cover up the scarring. He refuses to shave and because of the heat generated in the hood, claims that the hood makes him feel panicky. The employer should discuss alternatives including whether they have an alternative role for the employee. There is no duty to create a role for the employee, however, a reasonable assessment of roles such as moving others should be considered. If a reasonable alternative is not found, the employee could be dismissed after advice and following a fair procedure if that is a proportionate means of achieving the employer’s legitimate aim, i.e. keeping staff safe form harm in the workplace.

4 – A trans man has stubble and refuses to shave as it enables them to feel and look masculine. The employer should speak to them and discuss wearing a hood, to protect their health and safety. If that is refused because they don’t want to stand out and bring their chosen gender to the fore, the employer should look at alternative ways to accommodate the individual such as another role, if one is reasonably available. If that is option or no other proportionate means of achieving its legitimate aim is found or agreed upon, the employer may consider following a fair procedure that could lead to their dismissal.