The main legal point here is the discrimination on grounds of sex. As previously stated the SDA 1975 prohibits any discrimination by an employer against an employee on the grounds of sex. Referring to the head waitress's short hair cut as an issue involved with the reasons for wanting to terminate her contract would provide a basis for sex discrimination. She is contractually obliged to present a clean, tidy and well groomed appearance but there is no stipulation as to a rule concerning piercings specifically which hinders the power the company holds in this case.
Subsequent Advice I believe that with this situation it will be necessary to come to an accommodation with the employee concerning her nose piercing. To avoid this problem arising again in the future the employee handbook should be rewritten to include a rule on piercings stating the company's position. As no particular rule concerning piercings has been communicated, terminating employment using this as a basis would give the employee grounds for unfair dismissal.
No issue should be brought against the employee in this matter concerning her short hair cut as this is tantamount to sex discrimination – especially considering the shaven heads of other, male employees – and would lead to a strong case for the employee against the company. As an employer we have statutory duties under section 2 of the Health and Safety at Work Act 1974 to provide a safe and healthy working environment. Further to this and perhaps more relevant to this particular case the Workplace (Health, Safety and Welfare) Regulations 1992 specifically provide in relation to Ventilation that 'air should be fresh or purified'.
This is also a statutory requirement. Subsequent Advice This issue must be addressed immediately owing to the legal position. A 'No Smoking' policy should be adopted in the office place with, perhaps, a provision of facilities (a designated area) for smokers to use away from the working environment. A non-smoker should not be forced to work in a 'smoky' office and would have a solid basis for constructive dismissal on health grounds. The case against the company would expose it as being in breach of its statutory legal requirements.
If the company does not adopt a 'No Smoking' policy in the office then we must make other arrangements to make sure that any non-smokers are provided fresh or purified air in their working environment and we must ensure that they are not put in a position where there health is likely to suffer a detriment.
Employment Law – Malcolm Sargeant – Pearson Education Limited 2001. Chapter 6, Discrimination. Pages 166-230. (Core Unit 6) Legal and Regulatory Framework, HNC/HND Business Course Book – BPP Publishing Limited 2000. Chapter 12, section 8 Health and Safety, pages 238-241