Can an employee be fired for their hair colour?

A supermarket owner has been ordered to pay its former part-time worker after the Employment Relations Authority (ERA) found that the employee was unfairly dismissed due to her hair colour. The part-time employee, who was still a student, began working at the supermarket in 2018 when it was still under a different management, according to the investigation by the ERA.

It was eventually transferred to a new owner in 2019 - with new employment agreements for existing staff, including for the part-time employee. The ERA noted, however, that despite signing a new agreement with the new owners, the existing house rules that the employee signed previously were not replaced and continued to apply.

By November 2020, the part-time worker showed up to work with a new blue hair colour that the owner asked to be covered with a cap. Branded baseball caps were part of the uniform available to staff, the owner said as cited by the ERA finding, but it was not compulsory for many positions.

While agreeing to this request for that shift, the employee showed up to work the next day without her cap, which she forgot.  The owners then informed her that refusing to wear a hat was a "serious misconduct and could result in disciplinary action or even dismissal."

By late November 2020, the employee received a copy of the house rules - ones that she signed with her previous owners - but the investigation showed that the agreement, as did the 2020 version developed at that time by the owners - did not prohibit dyed hair nor specifically required wearing caps or a hat for certain hair colours.

According to the owners, it was "commonly understood" that if an employee dyes their hair in an unnatural colour, they needed to wear a cap. These colours included particularly bright ones such as blue, pink, and green.

A later meeting between both parties saw the employers requesting the employee to wear a hat, a request the latter denied due to it not being a requirement. The employers found her attitude disrespectful, and the meeting concluded with the part-time employee suspended on pay.

Read more: Can you refuse to hire someone with an unusual hair colour?

A later disciplinary meeting in December 2020 saw another exchange between both parties, with the employer pointing out that they consider blue a controversial hair colour and requested that it needed a hat, and the employee refusing because she does not "believe that they are the rules of the store."

Following the exchange, the employer has decided to terminate the employee.

"Your behaviour was divisive in the extreme and undermined the employment relationship to the point that we do not believe it would be possible to continue our employment relationship," a letter from the employer read after the disciplinary process.

"Taking all factors into account the outcome of the disciplinary investigation is to summarily dismiss you for serious misconduct."

ERA ruling

Following her termination, the employee filed a personal grievance for unjustified dismissal - and the ERA sided with her on the case.

In her decision, ERA member of authority Claire English disagreed that the employee had a common knowledge of the store's policy of covering up dyed hair.

"The allegation that there existed a binding contractual requirement to wear a hat if hair was dyed a certain colour was assumed, and never explored," she added.

On the employee's summary termination, English ruled that the victim was "unjustifiably dismissed and is entitled to remedies."

"Summary dismissal without notice and without paying out the week, was an action out of all proportion to the seriousness of what had occurred."

The employee is awarded $7,000 in compensation for hurt and humiliation, and more for lost income and holiday pay.