Better work stories

Employment lawyers sometimes get asked whether someone can be fired for “being a bit smelly”. This awkward and sensitive matter is difficult for an employer to address.

While in theory poor hygiene (bad breath, unwashed clothing, body odours, excessive flatulence etc.) could eventually be dealt with under formal procedures, this is in fact very rare. In most cases, a carefully planned conversation and a few follow up conversations tend to make all the difference.

In addition, informal discussions will help an employer understand if there are other issues that need to be considered. For example, body odour (and other indicators of poor hygiene) can sometimes indicate more concerning, underlying health issues. This may impact on the employee’s ability to perform their job safely or effectively. (There is a significant amount of material on the WorkSafe website about workplace health and hygiene, which is a useful resource for employers.)

The steps an employer can and should take really depend on the employee’s responsibilities (i.e. their job description – do they have a customer facing role?) and the documentation in place. While it is a more difficult issue to address if the employee doesn’t have any customer contact, their colleagues may still be impacted by the bodily smells (and are often much more likely to repeatedly complain to their employer about it). Note also that even body odour in the form of strong perfume might be something that an employer needs to address, particularly if it causes other employees headaches or allergies.

With respect to the documentation (we know we harp on about this but it really is that important), a dress code/policy or provision in an employment agreement should state that employees must dress smartly and maintain good personal hygiene at all times. Such provisions also make poor hygiene much easier (and less awkward) for an employer to be able to address.

In terms of a suitable process, often an informal, difficult, and uncomfortable conversation is the starting point. In the first instance, here are some important things to keep in mind:

1. Be proactive. Employers should not wait for other employees to raise the issue. This has the potential to escalate the issue unnecessarily, giving rise to additional bullying issues.
2. Pick the timing, location, and wording of any discussion carefully. Be discrete.
3. While tempting, do not be vague but address the matter factually.
4. Link the issue to the employment relationship, the employee’s responsibilities, and the impact on customers and colleagues (while remaining sensitive to the employee’s feelings and reactions).
5. Maintain perspective and reduce the potential for embarrassment wherever possible.

Where hygiene and/or bad odour become a problem in the workplace, we suggest that employers seek advice when looking to implement any form of process. In addition to other issues that could arise, it is important to do whatever possible to avoid a discrimination claim being brought by the employee, if it turns out that the smell is being caused by an underlying health issue or disability (which would require medical evidence and possibly medical intervention/advice). If the employee is suffering from a medical condition or a disability, an employer will be obligated to reasonably accommodate the employee’s needs, including ensuring that other employee’s are sensitive and understanding of the problem.

There is no easy way to tackle this issue and this is a conversation that definitely falls into the “courageous” basket. Sensitivity and tact will be required!

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Fiona McMillan, Gwen DrewittMaria Green,  Hannah Martin, Joseph HarropHolly StruckmanAlex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia StrickettKen Huang, Mary Zhou, Shi Sheng Cai (Shoosh)Sarah Kirkwood, Janeske SchutteLingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew ShawFiona McMillan

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