Banning Tattoos in the Workplace: The Girl with the Anchor Tattoo
According to McCrindle Research, 1 in 5 (19%) Australians have a tattoo. Despite the high frequency of tattoos in the Australian population, attitudes to tattoos in the workplace remain mixed. Emirates and Qantas recently made headlines for refusing to employ a woman as a flight attendant because she had an anchor tattooed on her ankle. Both airlines told her that she met the requirements of the position, but was not suitable due to ‘no tattoo’ policies.
In general, employers are allowed to implement policies which maintain an image or branding. This means that policies can address physical appearance issues such as tattoos, piercings or unnatural hair colour. In all states but Victoria, physical features such as tattoos are not a protected attribute in discrimination legislation. This means that implementing a policy banning tattoos in the workplace is usually legal. However, there are some instances where ‘no tattoo’ policies could cause issues with unfair dismissal and discrimination laws.
Liability for unfair dismissal
In the case mentioned above, the woman with the anchor tattoo was advised of the no tattoo policy in the recruitment stage of the hiring process. This is important, as failing to advise an employee of such a policy could expose the employer to actions for unfair dismissal if the employee gets inked after being hired.
It is important to note that employers can only ban visible tattoos. Concealed tattoos cannot be banned, as the employer’s policies regarding company image can only extend to the appearance of employees when wearing usual work clothes or a uniform.
Complying with discrimination laws
Australian discrimination legislation prohibits employers from discriminating against candidates and employees on the basis of race, sex, colour, sexual preference, disability, age, marital status, carer’s responsibilities, religion, ethnicity, nationality or social origin. While most tattoos will not need to be considered under discrimination law, many people have tattoos for religious, ethnic or cultural reasons (e.g. Pacific Islander and Maori people). If an employer treats an employee or candidate adversely due to a tattoo which has racial, religious, ethnic or cultural significance, they could be exposed to liability under discrimination law.
Other social categories which are protected under discrimination law also can come into play in this area. In 2003, the New South Wales Administrative Decisions Tribunal found in favour of a male service station attendant who had been dismissed for performance issues and refusing his supervisor’s direction to remove an ear stud. The employer has a policy in place which banned employees from wearing loose jewellery, earrings and studs. However, two female employees were allowed to wear earrings. Despite the gender-neutral wording of the policy, the Tribunal found that “the reference to no earrings/studs is a direction to him as a male.” This constituted discrimination on the basis of sex, as the same prohibition did not apply to female employees.
Protection from liability
Currently, there is little judicial guidance in this area. It is important that employers create policies which protect their brand and insulate the business from liability in employment or discrimination law. Improperly implemented policies not only have legal implications, but can also carry high reputational risks.
To ensure protection from unfair dismissal claims, employers must have a clear, written policy outlining the rules regarding the personal appearance of employees. Such a policy must be drafted by an experienced solicitor, as poorly drafted policies can expose employers to unfair dismissal or discrimination claims. Policies regarding physical appearance must be explained to candidates before they accept a position.
Our expert commercial lawyers are experienced in drafting policies which comply with employment and discrimination laws. We can help you draft or review polices to ensure they do not expose you to liability or unfair dismissal or discrimination. Call our Newcastle or Sydney lawyers on (02) 4929 7002 or fill out an enquiry form on our website.