Tattoos in the workplace
Not hiring an applicant because of a tattoo or piercing
It is usually lawful to decide not to hire for any criteria that are not protected attributes – for example, experience, qualifications and even physical
It is unlawful to decide not to hire someone because of a protected attribute.
An Employer that does not want to hire workers who have tattoos or piercings should consider:
- Ensuring it has a reasonable basis for having the requirement
- Ensuring that the job posting clearly states whether or not applicants may have visible tattoos and/or piercings
- Ensuring that the criteria are consistently applied to all candidates; and
- Discussing with the applicant whether he/she is willing to make accommodations, for example, by removing piercings whilst at work or having their
tattoos surgically removed.
When a decision is being made about terminating an employee it is also important to be mindful of the “unfair dismissal” laws. A dismissal will be
“unfair” if it is “harsh, unjust or unreasonable”.
In Woolworths Ltd v Brown an employee was dismissed because of his failure to comply with a request by the employer to remove an eyebrow piercing.
Woolworth had a policy which prohibited all jewellery except for ear sleepers. The employee instead covered it with a band aid. The Fair Work Commission
accepted the employer’s argument on appeal that the policy and direction were reasonable and justified because:
- the employer had a valid business reason to require its employees to present in a certain way when dealing with the public; and
- the employee worked in the deli section and the piercing or the band aid may fall into food and cause contamination.
Generally, it will be necessary to show:
- That there’s a policy prohibiting the employee from showing tattoos or piercings.
- That the employee has a legal obligation to comply with the policy. Usually this will be created by their employment agreement or enterprise agreement.
- That the employee knew about the policy.
- That the policy is “reasonable” and “rationally related” to the employer’s business.
- That the employee’s breach of the policy was “sufficient to justify dismissal”.
- The fact that an employee breaches a policy by having a tattoo or piercing done won’t usually be enough to justify dismissal on its own. An employer
must also show that there is a good reason for having the policy and that the breach of the policy is of a serious enough nature that the dismissal
is justified. This may depend on, for example, whether the employee has a customer facing role, whether there is a business reason for requiring
the absence of tattoos/piercings, and whether there are health and safety concerns, among other reasons. The employer must also follow a process
that gives the employee fair opportunity to improve.
McKays legal team can assist both employers and employees. Our employment lawyers have the experience to guide you through the complexities of discrimination
and employment law. Please contact us for assistance.