3 August 2015
Alison Spivey, Associate Director and Michael Starkey, Graduate
Employees are the human face of any organisation and the way in which employees present themselves can be perceived as a reflection of an organisation’s culture. As such, it is natural that employers be concerned with how their employees look in the workplace. But when it comes to managing employee appearance – what is it, and what is it not, okay for employers to do?
Two recent high profile cases – James Felton v BHP Billiton Pty Ltd  FWC 1838 (“Felton”) and Kuyken v Chief Commissioner of Police  VSC 204 (“Kuyken”) – have drawn attention to the often sensitive issue of managing employee appearance in the workplace, and the importance of employers developing and implementing appropriate policies to deal with it.
The facts and circumstances in Felton and Kuyken are extracted in more detail below. In summary:
- Felton considered the termination of the employment of an underground mine worker after he refused to comply with a requirement under a work health and safety (“WHS”) policy that he be clean-shaven; and
- Kuyken involved a discrimination claim by a Victorian police officer in respect of a grooming policy that banned male police officers from having long hair or a beard.
In both cases, the employer’s policy on workplace appearance and the measures it took to enforce that policy were upheld as lawful. However, the significance of the decisions in Felton and Kuyken is that they show that the particular factual and legal circumstances are vital when it comes to determining the cans and cant’s of managing employee appearance in the workplace.
This article examines the types of issues that your organisation should consider if it wishes to develop and implement an effective workplace appearance policy.
Issues to consider
A workplace appearance policy, and the manner in which it is intended to be enforced, must be appropriate for the nature of the work that is performed by the organisation and in light of the regulatory context in which it will operate.
By considering the following, employers can devise policies on workplace appearance in a way that minimises legal risk while maximising their ability to ensure the way their workforce looks reflects organisational values.
In developing and implementing policies such as those applying to an employee’s appearance, employers must consider whether the aspect of employee appearance they are trying to regulate might relate to a particular characteristic an employee possesses that is protected under anti-discrimination legislation, for example, their sex, race or religion. Policies which appear to apply to workers equally may nevertheless result in “indirect” discrimination. For example, a policy that employees must have short hair, even if applied to all employees, may “indirectly” discriminate against employees of certain ethnic groups.
It is vital for this purpose that employers are aware of what characteristics are protected under anti- discrimination legislation in their jurisdiction. For example, in Victoria, both religion and physical appearance are protected characteristics, while in New South Wales, neither is protected.
Employers should also always consider whether there is a “less discriminatory” way of achieving a desired outcome. For example, in the interests of food safety, employees in fast food establishments may be required to wear hairnets rather than cut their hair short if this does not otherwise impact the employer’s WHS obligations.
The employment contract
Another highly significant consideration will be how an organisation’s contracts of employment treat workplace policies and whether those contracts allow disciplinary action to be taken for breaches of workplace policies, or for employee conduct which threatens the organisation’s reputation.
Contracts of employment should make clear that employees are to be aware of and abide by all workplace policies and that disciplinary action may be taken against them if they fail to do so. They should also oblige employees to not conduct themselves in a manner which may harm the reputation of the organisation. Such provisions need to be combined with clear disciplinary procedures which give employees the chance to alter their behaviour before their employment is terminated.
By combining such contractual provisions with a clear vision of the image they want their organisation to embody, employers may gain leverage in the management of employee appearance. For example, in Liza Gaye Fairburn v Star City Casino  AIRC 479, Star City’s decision to dismiss an employee who refused to remove her tongue stud was upheld because it was accepted that Star City had a “5 star image” to uphold.
As the decision in Felton demonstrates, it will always be more reasonable for employers to attempt to regulate employee appearance if they have a sound legal reason for doing so. Policies on workplace appearance which aim to ensure the health and safety of workers are unlikely to be seen as unreasonable.
In determining what level of regulation is appropriate in their organisation, employers should consider the nature of the work being performed by their employees and ask questions like whether the work is dangerous, or whether it requires a high degree of interaction with customers. For example, it may be more reasonable for organisations to impose strict dress regulations on front-line customer service representatives than backroom administrative employees.
The importance of any workplace appearance policy being tailored to your organisation is best demonstrated by considering what the outcome of the decisions in Felton and Kuyken may have been if the facts were altered slightly. Imagine the following scenarios:
- Mr Felton is a retail employee of Company X, which operates a chain of clothing stores. Company X directs Mr Felton to shave his beard to comply with its newly introduced clean-shaven policy. In such circumstances, Mr Felton’s refusal to do so would be unlikely to give rise to the same WHS concerns as in the actual circumstances of the case. Those concerns removed, the FWC may be more likely to hold that Mr Felton’s dismissal was unreasonable and therefore unfair for the purpose of his claim.
- Victoria Police tightens its grooming standard, but the changes are never enshrined in legislation. In such circumstances, the provision under the EO Act that acts permitted by other legislation are not discriminatory would no longer apply and Victoria Police would be forced to defend the policy on other grounds.
A Ban on Beards: James Felton v BHP Billiton Pty Ltd  FWC 1838 (“Felton”)
The Fair Work Commission (“FWC”) upheld BHP’s decision to dismiss Mr Felton, an underground mine worker who refused to comply with a clean-shaven requirement in BHP’s Respiratory Protection Policy (“RPP”), which forms part of BHP’s WHS framework.
- The RPP relevantly required all mine workers to be clean shaven daily to ensure that the respirators they were required to wear sealed properly.
- Following the roll out of the RPP, Mr Felton twice failed to attend a scheduled “fit test” clean-shaven. After advising BHP in a formal meeting that he would continue to refuse to shave, Mr Felton was stood down on full pay.
- At a second formal meeting, Mr Felton offered to purchase his own air helmet instead of shaving, but was advised that this was not in accordance with the RPP. After again attending for work unshaven, Mr Felton was advised that his employment was at risk of being terminated if he continued to refuse to comply with the RPP.
- After being asked to show cause as to why his employment should not be terminated, Mr Felton wrote to BHP advising that he would not shave his beard, writing: “My facial hair is my personal attribute, it is who I am and my liberty of right”.
- Three days later, Mr Felton’s employment was terminated. Mr Felton made an unfair dismissal application to the FWC in respect of the termination of his employment.
In considering whether Mr Felton’s dismissal was “unfair” – that is, whether it was “harsh, unjust or unreasonable” – the FWC had regard to:
- BHP’s contention that its direction that Mr Felton comply with the RPP was a lawful and reasonable direction;
- BHP’s WHS obligations;
- Mr Felton’s “individual rights and preferences” with respect to wearing a beard; and
- Mr Felton’s offer to purchase his own air helmet.
In upholding BHP’s decision to dismiss Mr Felton, the FWC held that:
- BHP’s WHS obligations to ensure the safety of its mine workers outweighed Mr Felton’s preference as to his personal appearance;
- BHP’s efforts to enforce the RPP, designed as it was to ensure BHP complied with its WHS obligations, were lawful and reasonable, particularly given the number of opportunities Mr Felton was afforded to comply with the RPP; and
- allowing employees to provide their own personal protective equipment was not a workable solution, given the size and complexity of BHP’s operation and the potential for this to “undermine the integrity of the policy”.
An Employee in Uniform: Kuyken v Chief Commissioner of Police  VSC 204 (“Kuyken”)
In Kuyken, the Supreme Court of Victoria (“Court”) held that the grooming policy of Victoria Police, which banned male officers from having long hair and beards, was not discriminatory.
- In January 2012, Victoria Police changed its grooming standard to ban male officers from having long hair and beards.
- In July 2012, the new grooming standard was enshrined in changes to the Police Regulation Act 1958 (Vic) (“PR Act”).
- In August 2012, Victoria Police informed Mr Kuyken, who had a goatee, that he was to comply with the grooming standard, lodge a complaint with the Victorian Civil and Administrative Tribunal (“VCAT”) or face disciplinary action.
- Mr Kuyken lodged a complaint with VCAT alleging that he had been discriminated against on the basis of his physical features contrary to the Equal Opportunity Act 2010 (Vic) (“EO Act”).
- The Court upheld VCAT’s decision to dismiss Mr Kuyken’s claim.
- Although it was accepted that facial hair constituted a physical feature under the EO Act, that the grooming standard entailed differential treatment based on that physical feature, and that the threat of disciplinary action constituted less favourable treatment against Mr Kuyken, the grooming standard was not unlawfully discriminatory because it was permitted by the PR Act.
- The Court held that the PR Act granted the Chief Commissioner of Victoria Police an “explicit statutory power to superintend and control matters affecting the appearance of members of the police force” and that that power was “plain and unambiguous”.