These days, tattoos and body piercings are no longer the symbols of a counterculture inhabited by criminal gangs, bikies or punks. Tattoos and body piercings are now considered mainstream and chances are, if you don’t have one yourself, someone in your workplace does. So when is it appropriate for tattoos and piercings to be visible at work?
Ultimately, it is up to the employer. An employer can direct employees to conceal tattoos and piercings provided those directions are reasonable in the circumstances and not discriminatory. A workplace policy is considered a direction.
So how could such directions be discriminatory? There is no discrimination legislation specifically relating to tattoos or piercings. However, unlawful discrimination can occur if an employee is treated unfavourably because they have tattoos for cultural or religious reasons, or if female employees with tattoos or piercings are treated unfavourably compared to male employees with tattoos or piercings. In Victoria, the discrimination legislation does include physical features as a protected characteristic so that could possibly include tattoos and piercings.
And what is reasonable? It is reasonable for employers to favour their corporate image over employee self-expression. However, employers should consider the type of job an employee does. If an employee does not have contact with clients or customers, visible tattoos or piercings may not be an issue. Value judgments concerning people with tattoos and piercings should be avoided and decisions to totally ban tattoos and piercings in the workplace should be made for sound business reasons, otherwise the policy may be difficult to enforce.
Obviously for employees in a tattoo parlour, having ink is likely to be an inherent requirement of the job. However, more conservative workplaces and customer service businesses which focus on the uniform appearance of their staff as a marketing tool may require tattoos and piercings to be concealed. On the other hand, employers do not want to risk losing good employees so ideally there should be a balanced approach to the tattoo/body piercing issue.
Of course, offensive or obscene tattoos are unlikely to be acceptable in any workplace. Tattoos and piercings often arise in the context of sexual harassment cases. Emailing photos of offensive, obscene or sexually explicit tattoos or piercings to colleagues is not advised. Nor is indiscreetly flashing a discretely situated tattoo or piercing at the work Christmas party. Or asking a colleague to show you their discretely situated tattoo or piercing when that request is unwelcome and likely to make the colleague feel offended, humiliated or intimidated.
If employers do need to regulate the visibility of tattoos or piercings in the workplace, a well-considered written policy which is consistently applied is the key.
For further information or advice on tattooed employees or employment issues generally, please contact Mark Poretti on 6163 5050.
The information in this document represents general information, and should not be relied for your specific circumstances. If you require legal advice and assistance on the matters contained or associated in this document you should contact Trinity Law. Subject to the limits of the law, Trinity Law disclaims any liability on persons relying on this document.