Got a dress code? What if your receptionist gets a neck tattoo?

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 allows 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.

Clear policies are fundamental in ensuring that your employees know what is expected of them in terms of acceptable behaviour and presentation in the workplace. Transparency is key and a well-drafted policy essential to avoid an unexpected discrimination claim should your otherwise demure receptionist attend work next Monday sporting a prominent neck tattoo.

This information is for general purposes and you should obtain professional advice before undertaking any course of action. Your lawyer can assist in drafting appropriate policies and can advise on other workplace responsibilities and issues.

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) 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.

The Fair Work Commission is Australia’s national workplace tribunal with jurisdiction to resolve workplace disputes and unfair dismissal claims.

In addition, Commonwealth and State legislation promote equality within the workplace and deal with discrimination on grounds of race, colour, gender, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, ethnic, 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

Polices 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 an unreasonable no-tattoo policy may constitute discrimination. The ‘reasonableness’ of the policy might be considered in terms of the type of job to be performed, i.e.. whether customer contact is required.

Because, a no-tattoo policy might subtly discriminate in specific circumstances, employers should always look at the broader picture when implementing policies regarding appearance and dress code. There should be no nuances which might result in an unexpected complaint of discrimination.

Workplace policies should be reasonable in the circumstances and 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. Ideally, the existence of workplace policies concerning appearance or other important matters should be discussed during the hiring process with copies provided on induction. An employee sacked 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 (18 November 2014) the Fair Work Commission found that it had no jurisdiction to hear a dispute concerning a policy banning visible tattoos and lip piercings.

The Club’s enterprise agreement specifically noted that workplace policies did not form part of the agreement and therefore the policy fell outside the jurisdiction of the Commission.

The case reinforces that reasonable workplace policies are justifiable and may not be the subject of a hearing under the Fair Work Act. The comments made in the Commission’s reasoning 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 Commission 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 an holistic approach to implementing workplace policies.

Important points to remember

• Ensure that your business has clear policies on appearance, dress code, behaviour and other aspects of employment. Include in the policy the importance of having such codes within the organisation.
• Ensure that policies are in writing and given to your employees during orientation and, where applicable, verbally discussed during the interview.
• Consider situations in your workplace where direct and indirect discrimination might arise, such as employing people from different cultures, and ensure potential issues are addressed adequately in your policies.
• Consult with your employees and consider their involvement and input when implementing new policies.

Conclusion

Employers may implement dress codes and other policies in their workplace but should ensure these policies do not result in discrimination or unfair treatment. Policies should be in writing, reasonable in the circumstances and available to all employees and potential employees.

Your lawyer can explain your employer obligations and help draft a policy that is fair and reasonable, limits your exposure to claims for discrimination and unfair treatment and promotes the reputation of your business.

If you need assistance with drafting a workplace policy or would like information on any other employment matter, please call us on 1300 149 140 or email info@lawbase.com.au.