Employers must proceed with caution before dismissing an employee due to their appearance
Air New Zealand announced in 2019 they would no longer ban staff from having visible tattoos to allow them to “express cultural and individual diversity”.
It was a major step for the airline, that said following five months of consultation with customers and staff that all employees will be able to display “non-offensive” tattoos at work.
The policy even involved the creation of a Tattoo Review Panel to assist employees and managers in determining whether a tattoo is aligned with the policy.
Given the subjectivity of what constitutes an appropriate appearance in the workplace, let’s see what employers can do if an employee suddenly turns up with a new tattoo, an outlandish hairstyle or unusual piercings.
For somebody in a customer-facing role, most employers will have a dress code, policy or a provision in the employment agreement that requires a professional appearance, according to Charlotte Parkhill, partner at Dentons Kensington Swan.
“Employers have to be careful with tattoos and piercings because they may have cultural significance,” said Parkhill.
“Cultural nose piercings and cultural tattoos have cultural significance, so if employers take action against employees they might faced with a discrimination claim.”
For Maori people, markings known as moko are carved into the skin using chisels. They are a sacred tradition, denoting a person's links with their family and cultural identity.
Of particular importance is the facial tattoo moko kauae. Men's moko can cover their entire face, while the women's cover the chin.
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Apart from cultural significance, employees might be in difficulty if they get a tattoo of a cartoon character or their favourite football team.
Parkhill said that with these tattoos, employers may be in a position to say “this is a customer-facing role and it’s a requirement to cover the tattoo”.
“Or if it can’t be covered and the tattoo is on the forehead, then employers might say it is in breach of policy and the employment agreement,” she said.
In the case of tattoos, it is a topic that impacts many employees, as research has found one in five adult New Zealanders has at least one tattoo, while more than 35% of people under 30 are tattooed.
Parkhill said it is concerning when somebody rings her up to say “so and so has a tattoo and we want them to cover it”.
“There are special considerations, such as if somebody has a back-office role then employers would struggle to terminate them. It would mainly be that customer-facing type of position where dismissal could be justified,” she said.
“Asking somebody to cover a tattoo for a client event is reasonable unless there is cultural significance.”
However, what if the employee made a minor alteration to the body, such as a second ear piercing?
“It would be the reasonable opinion of a customer or client that it is not something which is offensive. That is not acceptable grounds for termination”
“Managers cannot say ‘I - the very conservative boss - find that to be offensive. Therefore, you are out the door’. Employers have to apply an objective measurement to it.”
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So, what about something a bit more noticeable, such as if an employee dyed their hair blue?
Parkhill said that could be a good example of something which is not in line with a professional image.
“If one of our lawyers dyed their hair blue then the firm would need to consider if that’s something appropriate in terms of the client-facing work that they do,” she said.
“It is a case-by-case situation and depends on what’s in your policy.
“Employers can’t just say something is unacceptable and unprofessional when it’s clearly not in the eyes of an objective reasonable customer.”