Arbitrators consider how intrusive employer’s rules are on employees’ personal lives
In many workplaces, setting out how employees dress is a management prerogative. The image employees project can impact how an organization markets and delivers its services.
In a unionized workplace, there are limits to what rules employers can put in place. But if they set out rules touching on tattoos and body piercings, they might run the risk of going too far.
A fresh reminder of these limits came by way of a recent arbitration ruling involving The Ottawa Hospital, a large amalgamated hospital employing 14,000 people in the nation;s capital. In the decision, an arbitrator struck down a new policy on tattoos, which allowed for small, discreet and unobtrusive tattoos to be exposed. But “large tattoos, if visible, will be covered during working hours.”
The case is reminiscent of other standoffs in the past over how an employee should look at work. Whether it’s jeans in the newsroom, goatees on police officers, shorts on library workers or facial jewelry on grocery workers, it’s a question that comes up time and again. In these types of cases, arbitrators tend to look for objective evidence that the rule is necessary. Thus, they threw out the ban on blue jeans for editorial staff at the Kitchener-Waterloo Record newspaper in Kitchener, Ont., the prohibition against goatees and beards on Regional Municipality of Waterloo police officers in Ontario, as well as the no-shorts policy at the Greater Sudbury Public Library in Sudbury, Ont. — mainly on the grounds that there was no business reason for the rule.
On the other hand, they let a no-jewelry rule stand at Alberta stores of the Safeway grocery chain, since Safeway was able to show, through a rigorous customer survey, that some people would shop elsewhere if Safeway grocery workers were allowed to wear facial jewelry.
These types of cases go back four decades, when Scarborough, Ont., firefighters challenged a rule that they couldn’t wear sideburns in 1972, says Peter Engelmann, a lawyer at Sack Goldblatt Mitchell LLP who acted for the Canadian Union of Public Employees (CUPE), Local 4000 in the Ottawa Hospital case. It was in that sideburns case that an arbitrator summed up a principle that’s now frequently cited: “There is no absolute right in an employer to create an employee in his own image.”
In the Ottawa Hospital case, Engelmann argued the tattoo policy fell short of a long-standing test for rules that are imposed unilaterally by employers. Named after a 1965 arbitration panel decision, KVP Co. Ltd. and Lumber and Sawmill Workers Union, Local 2537, the KVP test sets out six criteria for management rules. Among these are:
• they must not be unreasonable
• they must be clear and unequivocal
• they must be consistently applied.
Arbitrator Lorne Slotnick sided with the union. The hospital didn’t show enough evidence there was a connection between tattoos and the health outcomes of patients, he said, even if some patients might have a negative impression of the tattoos.
“The employer’s argument is explicitly based on its willingness to accept and acquiesce to patients’ perceived prejudices and stereotypes about tattoos and piercings, even as it offers no evidence that these have any impact on health outcomes,” wrote Slotnick in his ruling.
“The patient is not being ‘forced’ to accept tattoos and piercings; the patient is merely receiving care from workers who reflect the diversity that one would expect in a big-city hospital… It is not patients who are being ‘forced,’ but rather employees who are being told to suppress aspects of their identity that are important to them.”
What this case reinforces is there are limits to what management can impose unilaterally, says Michael Watt, an employment and labour lawyer and partner at Vancouver law firm Alexander Holburn Beaudin & Lang LLP.
“If (management) wants to implement limitations that are considered unreasonable, then the hospital will have to seek the union’s agreement to those limitations through consultation or collective bargaining.”
The arbitrator’s requirement that the hospital demonstrate the need for such a rule with evidence such as patient complaints concerns Watt. “This in my view leads in the wrong direction. The employer needs to be out in front of the game, and not trailing following a loss of business,” he says.
But this ruling doesn’t necessarily mean all tattoo policies are unreasonable, says Kathryn Meehan, a lawyer at the Waterloo office of management-side firm Hicks Morley.
“Had there been expert evidence indicating that excessive piercings actually had an impact on patient outcome, then the ruling could have been different,” adds Meehan.
Nowhere is this more evident than in the different outcomes of a similar tattoo policy at two different police services. At the Ontario Provincial Police (OPP), a cover-up-your-tattoo rule was grieved and thrown out in arbitration because there was no objective evidence that supported the policy.
In contrast, the police service in Medicine Hat, Alta., polled community members and found a majority would not be comfortable with officers sporting tattoos. After that survey, the police force has not met with any resistance to a cover-up rule for tattoos.
Another factor that arbitrators can take into consideration is whether an employees can express themselves when not at work, says Engelmann.
