According to recent studies, one in five or 19 per cent of Australians have at least one tattoo. Some view them as legitimate forms of art or symbols of their ethnicity or religion, whereas others respond negatively to their sight and immediately make assumptions about the person’s character. Personal opinions aside, the issue is not whether tattoos look aesthetically ink-credible, but whether they are socially acceptable, particularly in the workplace.
Tattoos in the workplace are often a divisive topic. It is estimated around 60 per cent of Australians believe tattoos in the workplace are unacceptable. Recently, there have been news reports about employers banning tattoos or dismissing job applicants for showcasing their inked skin. In 2016, a young Gold Coast woman was turned down from a job as a flight attendant for Qantas and Emirates because she had a 2.5 centimetre anchor tattoo on her right ankle. Both airlines confirmed their cabin crew are not permitted to have visible tattoos. It seems visible tattoos are still taboo in the office with a number of employers showing their disapproval by setting rules in their company policies to regulate their employee’s dress code and appearance. However, does the law permit employers to do this? The Fair Work Ombudsman concluded it was within Qantas and Emirates’ right not to offer the young woman a job over her small ankle tattoo.
If you are considering implementing a company policy and/or rule that involves banning employees from having visible tattoos, it is always advisable to get in touch with an employment lawyer.
What Does The Law Say?
Generally, there is currently no law preventing employers from banning tattoos in the workplace, or from refusing a job applicant due to their tattoo. In fact, it is a legal grey area. A spokesperson from the FWO said to News.com.au physical appearance is not a protected attribute under the Fair Work Act. But don’t be fooled. You can actually be accused of racially discriminating your employee under the Anti-Discrimination Act 1977 (NSW) if you require employees to cover up tattoos that are an expression of their:
- Nationality; and
- Ethnic origin.
Be aware you can also discriminate against a prospective employee on the same basis as well. The FWO views the act of forcing an employee to “hide” tattoos representative of a culture or race to have the effect of nullifying or impairing freedom of expression. The Australian Human Rights Commission (AHRC) affirmed discrimination can occur if an employer implements conditions or requirements which disadvantages some people because of a personal attribute they share. Therefore, it may constitute a breach of the Act.
The AHRC provides good examples of what kind of policy is unreasonable and may amount to racial discrimination. First, “if an employer had a policy to refuse to hire any workers with visible tattoos, even for roles that involved no customer contact”. Second, “a Maori job applicant who had a tattoo for reasons connected to his ethnic origin was not hired because of the tattoo”. Employers must be careful in how they draft their company policies and rules so it is not misinterpreted to mean the employer is dismissing an employee or discriminating against them on the basis of their ethnicity. Otherwise, employees may bring an unfair dismissal to the FWO.
Every business needs workplace policies. The LawPath legal document store has a workplace policy bundle that can help safeguard your business.
If you need assistance in drafting your company policies and/or rules or general advice, it is recommended you get in touch with an employment lawyer.
What Policies Are Acceptable?
Employers are entitled to have policies dealing with dress standards. But it may be difficult to enforce a ‘no visible tattoos’ policy or clear dress code policy as a proper process must be followed if employers choose to do so. However, it is not impossible so long as it is not seem to be discriminatory on the basis of race, colour, sex, age or protected attribute. Therefore, in some circumstances it may be reasonable to dismiss an employee or potential employee if they do not fit the “image” of the company. Although, employers will need to determine if the policy itself is unlawful and compliant with their obligations under the discrimination law.
It is a good idea to present your workplace policies to prospective employees. This allows them to understand what dress standards he or she must meet, including whether their tattoo is acceptable or going to be a concern. Further, other suggestions are:
- Employers should ensure there is consistency in the company’s policies. This is to avoid employees bringing discrimination claims.
- Instead of explicitly stating tattoos are banned, an employer can emphasise the importance of employees having a neat and professional image, and how it benefits the company’s reputation and image.
- Give employees and prospective employees the option of covering up visible tattoos rather than taking adverse action.
- Employers should familiarise themselves with the religious and ethnic symbolism tattoos can be associated with.
- Employers should understand their employee or prospective employee’s reason for wearing tattoos.
In summary, it is technically not illegal for employers to “ban” tattoos as long as their policies do not discriminate against employees or prospective employees on the basis of their race, colour, sex, age or protected attribute. Employers must consider how reasonable or lawful the policies are, and if they intend to completely prohibit visible tattoos, then they will need a business reason for doing so. Lastly, it is recommended employers should advise employees and prospective employees that they have obligations to meet a certain dress standard.
Want to learn more about your employer obligations? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents, obtaining a fixed-fee quote from our largest online network of expert lawyers or to get answers to your legal questions.