Earlier this year, The New Daily, along with several other Australian and international news outlets broke the story of a young female flight attendant who was turned away by Emirates and Qantas airlines as a result of a small tattoo of an anchor on her ankle.
Anyone who has worked for an airline, the military, or any number of careers this is unsurprising.
Policies regarding appearance and uniform have existed for a long time in many sectors of the workforce and usually only come into play where the tattoos are visible when in full uniform.
According to Australian federal law, employers can discriminate on the grounds of tattoos and body art.
However, this legislation is beginning to feel the weight of cultural change as the lines of social decorum and the employer’s rights to manage and govern the workplace continue to change in Australia.
Just as societies have cultural preferences and customs so do institutions and corporations.
Given the culture and origin of Emirates airlines, it should not surprise us that they will ask the question of any prospective employee if they have any tattoos that would be visible when wearing the company uniform.
It is also standard practice for Emirates to have you sign and confirm via a diagram that you have no visible tattoos mid-thigh to feet, on the arms, neck or head.
However, you are unlikely to be asked if you have any tattoos in general
Kym Butler of Butlers Business and Law in New South Wales says,
“In general, employers are allowed to implement policies which maintain an image or branding. This means that policies can address physical appearance issues such as tattoos, piercings or unnatural hair colour.”
The Australian Human Rights Commission has stated that it is permissible for companies, institutions and other places of business to determine the dress codes and overall culture of the workplace.
At the same time, they pointed out that employers must be sure that their workplace culture does not result in discrimination of an employee
Rebecca Sullivan, reporting for News.com.au sites an example of possibility discrimination saying,
“If a Maori job applicant who had a tattoo for reasons connected to his ethnic origin was not hired because of his tattoo, this could count as racial discrimination.”
However, what a tattoo has to do with race is hard to imagine. It could have something to do with culture, religion or geography, but no one is born with tattoos as a result of ethnicity or race. To label a dislike of tattoos as racial discrimination appears to many ordinary Australians as political correctness run amok.
“In all states but Victoria, physical features such as tattoos are not a protected attribute in discrimination legislation. This means that implementing a policy banning tattoos in the workplace is usually legal. However, there are some instances where ‘no tattoo’ policies could cause issues with unfair dismissal and discrimination laws.”, says Butler.
This makes liability in the case of an unfair dismissal a grey area for many employers.
For the time being, employers need to be sure that their hiring policies are within the current legislation. If tattoos are an issue for an employer, this is something that should be discussed during the recruitment process.
Employers should also be clear in their recruitment policy that the issue only concerns tattoos and any other form of body art that are visible while in uniform and while on the job.
Failure to disclose company policy on dress and appearance could lead to complicated, unfair dismissal claims down the track.
This was the unfortunate case for the Dapto Leagues Club 2014. The issue concerned a lip ring worn by a waitress working at the club at the time.
In October 2013 the club changed its dress policy, and visible body art was no longer permitted. Nevertheless, the waitress continued to wear her lip piercing.
Several meetings were held between the club and the employee, and the matter was eventually brought before the Fair Work Commission.
The clubs defence was that it had worked hard for many years to portray an image that its patrons would not find offensive. They were concerned that the body art could intimidate or offend loyal customers.
According to Emily Ditchburn of HRM Online,
“Deputy President Sams ruled that the FWC had no jurisdiction over the matter; in his written statement, he called the club’s decision to ban visible tattoos in the workplace an interesting – and confusing – choice.”
Interesting, yes, but also a concern for employers over what is becoming an increasingly murky area of workplace legislation and policy.