Apply caution when banning 'body art' at work
There are few legal risks linked to banning 'body art' at work, but employers should ensure policies are relevant to the workplace and consistently applied, says workplace lawyer Brad Petley.
Enlist employees' cooperationAccording to Petley, employers should enlist employees' cooperation in implementing or changing any policy, including those governing dress standards.
"Explain the reasons rather than have a swift introduction with no explanation. [That way] you're liable to have more cooperation."
If the employer has a consultative committee, HR should engage with it to develop and implement the policy, and liaise with the union where relevant.
A period of training or awareness needs to follow the implementation, he adds. Employers will need to clearly explain who the policy covers - for example, all employees who have contact with customers, clients and suppliers.
"It's all about implementing a fair policy with as little resistance as possible. Resistance is the costly aspect for the employer - not just from the standpoint of a legal claim but downtime in dealing with a disputing employee or even an employee leaving over a misunderstanding."
Beware discrimination trapsPetley says he isn't aware of any legislation that makes it illegal for an employer to discriminate against a prospective employee on the basis of their body art. "If it is a conservative workplace and the body art is... potentially offensive to customers, a [prospective] employee really needs to respect that."
Employers should be aware, though, that they can't rely on a visible-body-art ban to disguise what is really a prohibited discriminatory reason for not employing someone, or discounting them as a candidate, he warns.
So if a candidate has a tattoo of the Aboriginal flag, or one that has a "tribal flavour", and can't or won't cover it at work, the employer needs to ensure that their decision was based on the presence of the tattoo - and not its particular design.
Where a policy is already in place, employers can avoid confusion and claims by communicating it at the recruitment stage.
"If it's been made clear to the [applicant] what the workplace standards and expectations are... and they fail to observe those, well really I can't see any legal cause of action," he says.
Disciplinary actionWhen enforcing workplace dress standards, the same considerations apply as with any policy, Petley says.
Providing the employer has been upfront about the dress code, "it would be a case of reminding the employee about the code and their need to comply with it".
If an employee refuses to comply with the code, before taking disciplinary action employers need to consider:
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