Tattoos At Work- Can Employers Ban Body Art?
Australians today are getting inked at a phenomenal rate. Once a fringe craft, the tattoo industry has turned mainstream. Predictions suggest that around 25 per cent of Australians under 30 have been inked.
But it’s not only the tattoo industry that’s booming, the laser tattoo removal industry is also on the rise. One in three inked Australians regret their tattoos and shattered career aspirations is a significant source of this regret.
Many young Australians are losing out on job opportunities because of their ink. Some laser tattoo removal clinics have seen so many young people miss out on jobs because of their ink that they have started offering free treatments to anyone under 21 with face, neck and hand tattoos.
NO TATTOOS AT WORK!
Many Australian workplaces have ‘no visible inking’ policies as part of their dress codes which require employees to keep their tattoos covered at work, and which direct recruiters to turn down applicants with tattoos that cannot be hidden.
Tattoos are an issue for many employers concerned about their business image and reputation. Employers may fear that their clients will be put off or offended by noticeably tattooed personnel, or they may simply strive to project a ‘clean’, professional image for their business.
DO EMPLOYERS HAVE A RIGHT TO BAN TATTOOS IN THE WORKPLACE?
Employers are entitled to decide who represents them and to implement and enforce uniform standards which may include banning or limiting body modifications. There are no national laws stopping employers from prohibiting visible tattoos in the workplace or from rejecting job applicants because of their tattoos.
The Fair Work Act 2009 (Cth) (“the FWA”) protects many attributes including race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy and religion, however protection under the FWA does not extend to physical appearance.
CAUTION: BANNING TATTOOS MAY AMOUNT TO DISCRIMINATION
While employers may prescribe dress codes and ban tattoos, it is important that the implementation and enforcement of rules that affect people with tattoos does not amount to discrimination.
Various Commonwealth legislation (such as the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004) and the Western Australian Equal Opportunity Act 1984 protect people against discrimination and harassment in an workplace on various grounds, including sex, race, age and political and religious conviction.
Although physical appearance is not necessarily protected under these anti-discrimination laws, employers need to be cautious to not discriminate against their employees and job applicants on grounds that are protected by law. For example, if a Maori job applicant with visible tattoos for reasons connected to his ethnic origin is not hired because of his tattoos, this could count as racial discrimination (example provided by the Australian Human Rights Commission).
ADVICE TO EMPLOYERS:
Some tips to avoid unfairness or discrimination by your ‘no visible inking’ policies:
- Have a sound business reason for your dress code: It is generally accepted that is reasonable for employers to implement and enforce dress codes, but if they disadvantage some people because of a personal attribute they share, and the requirement is not reasonable in the circumstances, it could amount to discrimination.
- Implement policies with sufficient flexibility to accommodate employees’ religious or cultural obligations.
- When implementing or changing uniform standards, do so with caution, patience, and common sense, and ensure that you comply with procedural fairness requirements, especially where termination is considered.
- Be patient when implementing new ‘no visible inking’ policies if you have current employees who have been tattooed for many years (you may not be able to enforce the new policy against current employees unless you can prove that the body art is a hindrance to their work).
- Take in all the circumstances and ensure that you comply with procedural fairness requirements before rigidly applying policies, especially where termination is considered: In Woolworths Ltd v Dawson (1999) the Australian Industrial Relations Commission found that dismissing a long term employee for not complying with a new uniform standard (the new policy directed employees to only wear two earrings in each ear, but the employee had worn three earrings in each ear for the past seven years and continued to do so despite the new rules) was harsh, unjust and unreasonable.
ADVICE TO EMPLOYEES AND JOB SEEKERS:
Before you get inked:
- Think about the consequences. Balance the appeal of a new tattoo against the impact on your job prospects.
- Think carefully about the size and location of your tattoo.
- Think carefully about the design: racist symbols are a death sentence in terms of job prospects, and designs with connotations of drugs, violence, crime or death are likely to impede a job search.
- Consider that laser tattoo removal can be a long and expensive process, and there is only a 25% chance of having your tattoo completely removed.
As an employee:
- It is in your best interest to follow your employer’s directions as far as possible. Non-compliance with requirements to cover up your tattoos can result in disciplinary action that could eventually lead to dismissal.
- If a policy is introduced after you have commenced employment and the employers knew about your tattoos, you may be able to counter disciplinary action that comes your way. A new policy must be lawful and reasonable, and firing someone for not complying may give rise to an unfair dismissal case.
- Make sure your employer is not being discriminatory. Discrimination claims can be coupled with religion, national origin (e.g. tattoos are common in Maori cultures) and sex (e.g. if policies are applied differently to men and women).
About the author:
This article has been authored by Claudia Giovannini at Lynn & Brown Lawyers. Claudia is currently studying law at UWA and hopes to be admitted as a Perth lawyer in or about 2018.