"Discrimination" is a word that is often misused.
People often think that if they have been singled out for any
reason, they have been 'discriminated' against. This is not
necessarily the case.
Legally speaking, discrimination only occurs when the treatment
the person is complaining of is because of one of the 13 protected
grounds of discrimination, set out in the Human Rights Act, and
there is no good reason for the treatment.
These protected grounds include: sex, marital status, religious
belief, ethical belief, colour, race, ethnicity, disability, age,
political opinion, employment status, family status and sexual
Generally, employers have significant latitude to set guidelines
on their employees' appearance. Workplace policies which
provide specifications as to appropriate work attire, hair colour,
facial hair and the visibility of tattoos or body piercings are
legal and remain commonplace in many workplaces.
Whilst such guidelines may to some seem archaic and overly
prescriptive, in many industries a conservative and professional
standard of dress does remain the norm and the expectation, and as
an employer, you have the right to determine how you wish to
present your business in the best manner to attract and maintain
So, would it be discriminatory to direct your employee to cover
up a tattoo? To get to the bottom of this you need to first
consider: the type of tattoo and whether it might be related to one
of the grounds of discrimination; and if so, you then need to
consider whether there was good reason to ask for the tattoo to be
The request to cover up a tattoo which has cultural significance
by reason of the employee's religion or ethnicity could be
discriminatory as these are prohibited grounds. For example asking
an employee to cover up a culturally significant Maori tattoo such
as a moko could be discriminatory. On the flip-side, a tattoo of a
cartoon character or a flower would not be.
The Human Rights Review Tribunal considered a similar case,
where a woman of Maori descent who had a moko on her forearm, was
asked to wear a long sleeved shirt to cover it up whilst working at
a corporate event. The Tribunal found that whilst the moko was of
ethnic significance to the employee, the request was not
discriminatory for the following reasons:
There was no discriminatory intent behind the request
The company had a rational business-related reason for the
The request to wear a long sleeved shirt was an effective way
of dealing with the company's concern
The employee did not make the employer aware she was unhappy
with the request and therefore its need to consider alternative
means for dealing with its concerns
The request was only for one function so any discriminatory
effect was limited
Of course as part of your wider duty as an employer, it is
important that employees are treated fairly and are not
unreasonably singled out. So in future to ensure all employees are
clear about the company's expectations in relation to
presentation for public appearances, especially if these differ
from the day to day standards, it would be advisable to send out an
email prior to the event outlining the dress expectations and the
business reasons for them to avoid any complaints or concerns.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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