Tattoo and Body Piercing Rule Unreasonable
An Ontario arbitrator has decided an issue of increasing concern to employers everywhere - what can be done about tattoos and body piercings? The answer: not much, without objective evidence of an adverse effect on your business.
Thanks to our colleagues Meaghan McWhinnie and Robb Macpherson in our Toronto office for writing about this case.
The Ottawa Hospital introduced a comprehensive dress code policy requiring, among other things, that employees cover up large tattoos and remove "visible, excessive" body piercings. The union grieved the dress code policy as an unreasonable infringement on employees’ right to express themselves through their appearance. The arbitrator agreed with the union and struck down the policy.
An employer rule imposed on a unionized workforce must be reasonable, clear, and consistently enforced. Rules concerning dress and appearance are generally reasonable where there is objective evidence of a legitimate business interest at stake. The arbitrator noted that in the context of a public health care provider, delivering the best possible health care was a legitimate business interest.
The union did not take issue with any dress code provision related to health and safety or sanitation provided that there was objective evidence to support the rule. In the case of tattoos and body piercings, the union maintained, there was simply no connection with health or safety concerns.
The hospital argued that tattoos and piercings could undermine a patient’s confidence in an employee’s professionalism, and that this perception generated stress which negatively impacted health care outcomes. The hospital, being unable to adduce any objective evidence to support this proposition, argued that the requirement for objective evidence was not appropriate in the hospital setting as being “pro-active” was an “all important element” of health care.
The arbitrator accepted that some patients may have more negative impressions of health care providers with tattoos or piercings; however, the arbitrator would not simply accept a connection between these feelings and patient health care outcomes without any objective evidence. In the absence of this connection, the arbitrator concluded that the rule was an unreasonable infringement on employees’ right to express themselves through their appearance. The arbitrator upheld the grievance and declared the dress code policy void and unenforceable.
In a unionized setting, it may be possible to have a policy requiring employees to cover tattoos or remove piercings where there is objective evidence indicating that such adornments adversely affect business interests.
Non-unionized employers are not necessarily subject to a standard of reasonableness with respect to workplace rules; however, all employers must ensure compliance with employment standards and human rights legislation whenever implementing new rules or policies.
The decision can be found here: Ottawa Hospital case.
body piercing dress code freedom of expression policy tattoo