Apply caution when banning 'body art' at work

17 May 2010 8:28am

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.

If a candidate's body art can be removed, or covered while working, "they may never have to worry or be concerned about the employer's attitudes", he says. But as tattoos become more common in less traditional areas - such as the neck and hands, which are difficult to cover up with normal work clothing - they pose "practical problems" for employers concerned about the image these might portray.

According to Petley, solicitor director at Acumen Lawyers, it is an established principle that employers have a right to regulate their employees' appearance, and can prohibit visible body art such as tattoos and piercings if concerned about their image.

To minimise their exposure to claims, however, employers should have in place policies clearly setting out their expectations.

Petley says a visible body art ban will "withstand scrutiny" if the workplace has a conservative atmosphere, for example, or involves customer or client contact, or food preparation.

It's fine to have different expectations of employees in these roles, he says, compared to those working solely in "back office" functions. (In a case involving an employee with a facial piercing, the court found she could wear the nose stud while working at her desk, but had to remove it when dealing with customers and handling food.)

Enlist employees' cooperation

According 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 traps

Petley 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 action

When 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:

Is the policy, or particular stipulation, reasonable?

Has the policy been clearly communicated to employees, and do they understand it?

Has the policy been uniformly or consistently applied across relevant parts of the organisation?

Is it possible an employee is being singled out?

Is the disciplinary action proportionate to the gravity of the breach?

What is the employee's tenure and record?

If you have some HR news to share or would like to suggest a topic for an article, click here to email the editor.

1 comment | Comments closed

Informal policy warranted formal explanation: Case study
Ignore "difficult" employees at your peril: Lawyer
Prescriptive relationship policies send "wrong message"

Latest headlines

Advanced search

search for	from date

	to date