Everyone has the right to a safe work environment free from discrimination. In Australia, laws prevent employers from taking adverse action against an employee because of race, colour, sexual orientation, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Employee appearance is not covered under the current protective provisions. So, what can an employer legally dictate or demand of you concerning your appearance?
Is the demand onerous?
In the recent case of Tasmanian Water and Sewerage Corporation v. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), [2004] FWC 786 the Fair Work Commission rejected the claim that the requirement of employees to be clean shaven was unreasonable and determined that the direction of the employer was not unreasonable in this case as, among other things:
- It ensures that employees do not become ill or die from silicosis or asbestosis disease, and
- The requirement to be clean shaven is not onerous on employees.
Depending on the industry you work in, not following a policy regarding appearance, grooming, or similar may be considered unreasonable because of the risk to your health and safety.
My body, my choice – right?
Seeing personal expression in the form of tattoos and piercings has become more common across the professional landscape, and while physical appearance, including tattoos, is not a protected attribute under the Fair Work Act 2009 (Vic), Anti-Discrimination Acts provide some protection for employees. For example, Anti-Discrimination laws cover workers if their tattoos are religious and/or cultural, and the removal or cover of these is religious or racial discrimination.
Additionally, an individual may be able to argue that their tattoos are an 'other bodily characteristic' protected under the Equal Opportunity Act (2010), which prevents discrimination on particular attributes, including a person's physical features.
Like other forms of self-expression, tolerance to an employee's piercings depends on company policies and whether the limitation or removal is for health and safety reasons.
A distinction can be drawn between two cases involving Woolworths employees dismissed for piercings. In Woolworths Limited v Dawson, the Tribunal found that the termination due to the employee having three piercings (when the policy limited it to two) was harsh and could have been avoided. Whereas in the case of Woolworths Limited v Cameron Brown [PR 963023] 26 September 2005, the dismissal for refusing to remove his eyebrow ring was not considered unreasonable because the reason for this demand was related to food handling and safety and the employee was asked numerous times to comply with the policy since its introduction.
In each of these cases, workplace health and safety considerations were critical in determining whether the request was reasonable or onerous to the employee.
Lessons
Policies on workplace appearance that aim to ensure the health and safety of employees are unlikely to be seen as unreasonable as long as they are consistently enforced and reasonably applied across the business. Employees must also be given reasonable opportunity to meet the requirements of any reasonable policy or directive. If you feel directly targeted because of a protected attribute, seek advice from an employment lawyer, as this may amount to discrimination.
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.
