Key Points
- Employers have a right to issue lawful and reasonable orders and this can come in the form of a dress code.
- Workplace dress codes provide minimum expectations of what employees look like at work.
- Employers must tread carefully when it comes to anything that may defy anti-discrimination laws.
The newly legislated has sparked much discussion around workers' rights in Australia.
But when it comes to how you look at work, do you know what your employer can ask of you?
Workplace dress codes
Most workplaces have , whether it's a uniform or just minimum expectations of what employees look like at work.
Some dress codes are more demanding than others — including requirements for make-up, or banning tattoos and piercings.
Giuseppe Carabetta, an associate professor of employment law with the Business School at the University of Technology Sydney, said employers are permitted to enforce a dress code.
"Employers have a right to issue lawful and reasonable orders. That comes from England, and comes from the common law. It's still there, and that is basically the source of these policies," he said.
"The courts and tribunals in Australia, in the UK and even in other places have said that, broadly speaking, dress codes fall under this 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 perceived 'professionalism' in the workplace.
Giuseppe Carabetta described a 2016 situation in the UK where a receptionist was told to go home because she was not wearing heels as "crazy". Source: Getty / Hinterhaus Productions
Carabetta said a dress code could include most things, as long as they did not infringe on protected rights.
"Anything that doesn't trigger anti-discrimination laws, you've really got to be careful not to be gender-specific."
He described a situation in 2016 in the UK where a receptionist was told to go home because she was not wearing heels as "just crazy".
"Because that is gender-specific and it's female-specific, that would be problematic from the employer's perspective."
Can dress codes extend to make-up?
Carabetta said employers must tread carefully in situations where requirements differ between genders.
"They have to be very careful there. So if they're directing that at females only that could be problematic. [There] might be certain roles and a service type industry where maybe you're selling make-up then there might be an exception there," he said.
Carabetta said some workplaces have different standards for different genders which may mean that while women are required to wear make-up, men are required to wear a tie.
He said those differences were allowed, as long as one gender was not expected to put in more effort than others.
Carabetta said the dress code expectations for one gender should not be greater than another. Source: Getty / bojanstory
More than just dress code policies
Carabetta said what was reasonable in a dress code did not just come down to what was written in a policy.
"It's not just about whether you have a valid ground to dismiss someone," he said.
"The Fair Work Commission, it basically regulates what's called unfair dismissal."
Carabetta said these laws were about ensuring "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, Carabetta said there were 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, [or] if it's introduced retrospectively.
"Also, the policy needs to be proportionate to the actual behaviour. If the policy is not actually relevant to the job, [that] 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 was unreasonable, Carabetta said it could be hard for employees to challenge.
"Not all employees, but most employees, by definition, are really kind of powerless. Let's say you're a casual, for example, and you don't have representation through a union. You're concerned that if you do push back you might lose. You might win the battle, but you'll lose the war, you might lose your next shift, that kind of thing," he said.
"More formally, if they actually terminate you, then there's good news for employees and it becomes a lot harder for the employer."
Carabetta said if an employee was terminated over an issue, it would become easier to dispute.
"The unfair dismissal route is fairly accessible, certainly more accessible than, say, going to a normal court. It's a tribunal. But then you've got ... the political side to it. Do you want to take the risk? Do you want to be on the record? Do you want to be known in a sector as 'that person?'"
He said one thing trumped all else on this issue: health and safety.
"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 like, workplace health and safety, it can trump the other factors."
