INKED up and having trouble finding work?
Firing or not hiring because of tattoos and piercings can be a "legal and emotional minefield" for businesses, a Mackay lawyer has warned.
But employers can indeed choose not to hire people with the body modifications if there's a reasonable basis.
Employment lawyer at McKays in Mackay, Scott McSwan, has weighed in on the touchy topic, following recent media attention around the case of the Gold Coast's Chontelle McGoldrick.
Ms McGoldrick is a 21-year-old woman who was rejected from jobs at Qantas and Emirates because of a 2cm tattoo on her ankle.
Do tattoos and piercings make it harder to find work?
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Yes, I think they do.
No, I don't think they do.
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She was apparently told if she had the tattoo removed she would be hired.
Various studies released in 2015, including from social research organisation McCrindle, found 14.5% of Australians have at least one tattoo.
Mr McSwan said employers can apply criteria, such as 'no tattoos' when hiring a candidate "provided that they do not refuse to hire because of a protected attribute".
For example, anti-discrimination laws and the Fair Work Act list ethnicity, nationality and religion as protected attributes.
But refusing employment due to physical appearance is relatively fair game, provided job advertisements list whether or not tattoos and piercings are allowed.
Additionally, criteria must be fairly applied to all candidates and employers should talk to workers whether they're willing to compromise, by covering or removing tattoos and piercings.
"Sometimes the issues are more complex, however," Mr McSwan said.
"A tattoo or body piercing may be used for cultural or religious reasons. An inflexible policy against hiring employees with any tattoo or body piercing may have an unlawful consequence of ruling out a higher proportion of persons with particular cultural or religious backgrounds."
However, when it comes to firing a worker because of a tattoo, unfair dismissal laws can rear their head.
"When a decision is being made about terminating an employee it is also important to be mindful of the unfair dismissal laws," Mr McSwan said.
Generally, it will be necessary to show there's a policy prohibiting tattoos or piercings and that there's a legal obligation for the worker to comply in their employment agreement.
Workplace policy must also be reasonable and rational and any breach of policy must be enough to justify a worker losing their job.
"The fact that an employee breaches a policy by having a tattoo or piercing done won't usually be enough to justify dismissal on its own," Mr McSwan said.
"An employer must also show that there is a good reason for having the policy and that the breach of the policy is of a serious enough nature that the dismissal is justified.
"This may depend on, for example, whether the employee has a customer facing role, whether there is a business reason for requiring the absence of tattoos/piercings, and whether there are health and safety concerns, among other reasons. The employer must also follow a process that gives the employee fair opportunity to improve."
"Firing or not hiring because of tattoos can be a legal and emotional minefield and we recommend caution in this area."
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