TRANSCRIPT
Most workplaces have some kind of dress code, whether it's a uniform, or just minimum expectations of what employees look like at work.
Some dress codes are more onerous than others - including requirements for makeup, or banning tattoos and piercings.
Associate Professor of employment law with the Business School at the University of Technology Sydney, Dr Giuseppe Carabetta, says employers are allowed to enforce a dress code.
“Employees have a right to issue lawful and reasonable orders. That comes from England, and comes from the common law. And it's still there, and that is basically the source of these policies. Basically, the courts and tribunals in Australia in the UK and even in other places have said that broadly speaking dress codes fall under category.”
That can include requiring a certain level of decorum in how employees present, wearing a tie, requiring a uniform, or other dress standards that maintain a level of professionalism in the workplace.
Employers can also require that staff wear things that protect them adequately, like enclosed shoes.
Dr Carabetta says a dress code can include most things, as long as they don't infringe on protected traits.
“Anything that doesn't trigger anti-discrimination laws, you've really got to be careful not to be gender specific. You've probably seen the UK case where there was a receptionist and she was told to go home for not wearing heels which is absolutely just crazy, and any reasonable informed individual would think that's nuts. But you know, because that is gender specific and it's female specific, that would be problematic from the employers perspective.”
So, can your employer make you wear makeup?
Like most legal questions, it's complicated.
Dr Carabetta says employers must tread carefully if they're making it a requirement.
“They have to be very careful there. So if they're directing that at females only that could be problematic. Might be certain roles and a service type industry where maybe you're selling makeup then there might be an exception there.”
Some workplaces have different standards for different genders.
That could include women being required to wear makeup, and men being required to wear a tie.
Dr Carabetta says those differences are allowed, as long as one gender isn't expected to put in more effort than others.
“So the courts and the tribunals tend to say, by definition, you are allowed to do that to a point okay, but where they can get into serious trouble, is again, if they're imposing a gender specific requirement, and then they're not treating the other gender or the other sex with an equivalent in broad terms requirement.”
Dr Carabetta says what’s reasonable in a dress code doesn’t just come down to what’s written in a policy.
“It's not just about whether you have a valid ground to dismiss someone. So the Fair Work Commission, it basically regulates what's called unfair dismissal. And the unfair dismissal laws, they are about ensuring that employees are not dismissed in a way that's harsh, unjust or unreasonable. So that's a lot broader than saying okay, do we have a valid policy, and do we have a valid ground to dismiss you.”
If an unfair dismissal case reaches the Fair Work Commission, Dr Carabetta says there are several factors that could be considered.
“If the policy hasn't been communicated to all the employees, that's one thing that could get them in trouble. If it's not applied consistently, it's another thing if it's introduced retrospectively. Also, the policy needs to be proportionate to the actual behavior if the policy is not actually relevant to the job is another factor. So okay, you're saying that I need to cover my tattoos, but I'm not actually in a client facing role. So what's the point of that?”
Even if a dress code is unreasonable, Dr Carabetta says it can be hard for employees to challenge.
“Not all employees but most employees by definition, are really kind of powerless. Let's say if you're a casual for example, and you don't have representation through you know, these days a union you’re concern that if you do push back that you might lose, you know, you might win the battle, but you'll lose the war, you might lose your next shift, that kind of thing. But more formally, if they actually terminate you, then there's good news for employees and it becomes a lot harder for the employer.”
Dr Carabetta says if an employee is terminated over an issue, it becomes easier to dispute.
“If you're willing to go down that track, and you do it in time, so there's a time limit I think it's 21 days at the moment, the unfair dismissal route is fairly accessible, certainly more accessible than say, going to a normal court, so it's a tribunal. But then you've got again, the political side to it. Do you want to take the risk? You want to be on the record? You want to be known in a sector who is that person?”
He says one thing trumps all else on this issue… health and safety.
“One thing that will work in employer's favour, where they can point to a health and safety obligation on their part to justify a policy. So we had a butcher who wanted to wear a nose ring and the employer argued that no for health and safety reasons you cannot do that. So it's almost workplace health and safety can trump other the other factors.”
