According to recent studies, 19 per cent of Australians have at least one tattoo. Some Australians view them as forms of art, whereas others respond negatively and make assumptions about the person’s character. However, the issue is not whether tattoos look suitable, but whether they are socially acceptable in the workplace.
Tattoos in the workplace are often a divisive topic, with many Australians believing that 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 Gold Coast woman was turned down from a job as a flight attendant for Qantas and Emirates. This was because she had a 2.5 centimetre anchor tattoo on her right ankle. Both airlines confirmed their cabin crew cannot have visible tattoos. It seems visible tattoos are still taboo in the office. In fact, a number of employers have demonstrated their disapproval through their company policies. However, does the law permit employers to do this? The Fair Work Ombudsman concluded Qantas and Emirates’ could reject applicants due to their tattoos.
If you want to implement a policy or rule which bans employees from having visible tattoos, you should contact an employment lawyer first.
What Does The Law Say?
Generally, there is no law preventing employers from banning tattoos in the workplace. Similarly, there’s no law which prohibits an employer from rejecting a job applicant due to their tattoo. In fact, it is a legal grey area. It has been noted that physical appearance is not a protected attribute under the Fair Work Act. However, you can actually be accused of racially discriminating against your employee under the Anti-Discrimination Act 1977 (NSW) if you require employees to cover up tattoos that are an expression of their:
- Race
- Colour
- Nationality
- Ethnic origin
Be aware you can also discriminate against a prospective employee on the same basis as well. The FWO views forcing an employee to “hide” tattoos representative of a culture or race as 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.
Two Examples
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 connected to his ethnic origin wasn’t hired because of the tattoo”. Employers must be careful in how they draft their company policies and rules so it is not misinterpreted. If it is, it may mean the employer is dismissing or discriminating against an employee based on their ethnicity. Otherwise, employees may bring an unfair dismissal to the FWO.
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 can implement policies dealing with dress standards. However, it may be difficult to enforce a ‘no visible tattoos’ policy or clear dress code policy as a proper process must be followed. 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.
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Suggestions
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 prohibiting tattoos, 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 become familiar with the religious and ethnic symbols tattoos can represent.
- Employers should understand their employee or prospective employee’s reason for wearing tattoos.
Conclusion
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.
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