sits down with Francessca Lee, Employment Lawyer with McDonald Murholme to talk about tattoos in the workplace, discrimination, dress code policies and whether body ink is beginning to be accepted into the corporate world.
Can an employer refuse to employ someone with visible tattoos?
It is common practice for an employer to have a policy that regulates an employee’s dress code and appearance but it is important that an employer does not discriminate on the basis of race, colour, sex, sexual orientation or age. If an employer refused to employ someone with a visible tattoo that was connected to their ethnicity or cultural origin then the decision could be seen as discrimination on the basis of race.
In Victoria, the Equal Opportunity Act (2010) prevents discrimination on particular attributes including a person’s ‘physical features’. ‘Physical features’ means a person's height, weight, size or other bodily characteristics. In Jamieson v Benalla Gold Club Inc
 VCAT 1849 (30 September 2000), it was presumed by the Tribunal that a tattoo was to be included in ‘other bodily characteristics’. However, the decision did not require a finding on these facts which means that inclusion of a tattoo in ‘other bodily characteristics’ is not binding but will likely be considered in any future cases.
Can an employer enforce a ‘no visible tattoos’ policy? Can this be retrospective?
An employer is able to enforce a no visible tattoo policy if it is compliant with their obligations under the discrimination law. Whether or not the policy is reasonable may be taken into account when deciding if the policy is unlawful.
It will be difficult to implement a policy such as this retrospectively and employers will need to ensure that a proper process is followed when implementing such a policy in the workplace.
HR departments often hire people because they fit the “image” of the company and have the potential to attract clients and customers. At what stage does this become discrimination?
It is acceptable for an employer to implement a policy in relation to dress code and appearance unless it is seen to be discriminatory on the basis of race, colour, sex or age and potentially a physical feature that may include a tattoo.
Can an employer ask employees to cover up? What they can do if an employee gets a tattoo after they’ve been working for the company for a while?
It may be considered reasonable for an employer to ask an employee to cover up a tattoo as long as it is not discriminatory against a particular employee for a protected attribute. The same policy applies to an employee who gets a tattoo after they’ve been working for the company for a while.
In the case of Woolworths Limited (t/as Safeway) v Cameron Brown [PR 963023] 26 September 2005, an employee was dismissed as he had repeatedly been told to remove an eyebrow piercing following the implementation of a new policy.
Can it be legally argued that sporting visible (non-cultural) tattoos is part of self-expression and by demanding that an employee cover their tattoo be in violation of their rights?
This a reasonable argument to be made particularly in the state of Victoria where the legislation prevents someone from being discriminated against on the basis of their physical features which has been accepted to include a tattoo in recent decisions.
In your legal experience, is there a shift in attitude towards accepting tattoos in the professional world?
Our society has progressed into one that has become generally more accepting and tolerant of individuality. It is quite common today for many workers to have a tattoo and as long as the tattoo does not impinge on the worker’s ability to perform their role or harm the reputation and image of the company, tattoos have become more acceptable in a workplace.
What are some top tips for HR executives to avoid a legal minefield?
Employers must ensure that when implementing policies that they are not discriminating against any workers or potential workers on the basis of their race, colour, sex, age or physical appearance.
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