It’s fair to say that ‘self-expression’ through body art such as tattooing and facial piercings is on the increase. But is it fair that employers can have policies regarding appearance, that ban visible tattoos or facial piercings, or that allow discretion not to hire somebody on the basis of their ink and piercing choices?
Generally, yes. Your employees represent your business and it is reasonable to expect that certain standards of appearance should apply, particularly in line with your organisation’s reputation and standing within the community.
There is no law that prevents an employer from insisting that visible tattoos or piercings be covered during working hours or from implementing a no-tattoo policy on hiring, provided important issues are considered.
Employers have responsibilities to their employees and should be familiar with the various workplace laws introduced to assist with good recruitment and employment practices and to avoid potential workplace disputes.
What laws must employers consider?
Employers must ensure that employees and potential employees are not unfairly treated. These obligations arise during the recruitment process, should be reflected in terms and conditions of employment, and continue throughout the work relationship such as when opportunities for training and advancement arise.
Most employer / employee relationships are covered by the
Fair Work Act 2009 (Cth) (the
Act), which sets out minimum standards of employment and provides protection to employees against unfair dismissal. The Act prohibits harsh, unjust or unreasonable treatment in the workplace.
In addition, Commonwealth and State legislation promote equality within the workplace and deal with discrimination on grounds of race, gender, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, ethnicity, national extraction or social origin. Discrimination will occur if a person or group of people are treated less favourably within the workplace on the basis of any of these factors.
Implementing a dress code policy
Policies may appear neutral in that they do not directly discriminate on the above grounds. They may however inadvertently disadvantage certain people because of a personal attribute linked to these factors. For example, refusing to employ a Maori applicant who has culturally significant tattoos, on the basis of no-tattoo policy may be unreasonable and constitute discrimination. The ‘reasonableness’ of the policy might be considered in terms of the type of job to be performed, for example, whether customer contact is required.
Workplace policies should be reasonable in the circumstances and should be implemented in a manner that protects an employee from treatment that might be considered harsh or unjust. For example, implementing a policy after a tattooed employee is hired, that retrospectively bans tattoos (and where no previous notice or concerns had been raised) may be considered unfair or unreasonable.
Employers should also ensure that employees are aware of policies and are provided with written copies. Terminating an employee for having a tattoo or not covering a tattoo in circumstances where he or she did not know of the existence of a tattoo policy may be grounds for unfair dismissal.
Case study
In
Dapto Leagues Club Ltd v A [2014] FWC 7953, the Club’s enterprise agreement specifically stated that workplace policies did not form part of the agreement, and as a result, the Fair Work Commission found that it had no jurisdiction to hear a dispute concerning a policy banning visible tattoos and lip piercings.
The comments made in the Tribunal’s reasons however alert us to the potential risk that a dress code policy made retrospectively may indirectly discriminate against certain employees.
The employee in question wore a lip ring which she had for several months prior to the Club implementing a new policy that required her to remove the lip ring during working hours. The policy, however, did not require those existing employees with visible tattoos to have them removed nor would they be subject to disciplinary action for failing to do so. Whilst this latter part of the policy was considered ‘sensible and realistic’ the Tribunal considered that there may be ‘a hint of discrimination’ given that the female employee (whose lip piercing was also pre-existing) had been requested to remove it.
These comments remind us of the importance of taking a reasonable approach to implementing and enforcing workplace policies.
Conclusion
Clear workplace policies are fundamental in ensuring that your employees know what is expected of them in terms of acceptable presentation in the workplace.
A well-drafted policy, as well as a reasonable approach to implementing and enforcing the policy, are essential to minimise the likelihood of an unexpected discrimination claim.
If you would like assistance with drafting a workplace policy, or require advice regarding the enforcement of an existing workplace policy or any other employment matter, please
contact us.
