In South African law, the courts have, in general, taken the side of the employee where an employment policy limits a certain appearance.
Employment law experts from Cliffe Dekker Hofmeyr said that South Africa does not have express provisions in the Constitution or the Employment Equity Act that prohibit appearance based on tattoo discrimination.
Therefore if challenged by an employer because a worker has a tattoo, the worker would need to base their claims on a listed ground.
“An employee would have to argue that personal appearance should be protected under freedom of expression or personal dignity,” said the legal firm.
The discourse around tattoos in the workplace has been sparked by recent comments from the minister of police Bheki Cele, who said that people with tattoos are not hired by the police force because they relate to people who are gangsters.
“When you have a tattoo, we don’t hire you because you have a tendency of being a gangster,” said Cele.
According to Cliffe Dekker Hofmeyr, tattoos are a mutable characteristic, meaning that they do not automatically qualify for legal protection and are commonly dealt with in an employer’s dress code and grooming standard.
South African courts have reaffirmed their commitment to values of dignity, freedom of religion, opinion and expression, and equality over restrictions on a person’s personal appearance, it said. This fact is highlighted by judicial decisions in South Africa, which have refused to follow the international approach to appearance discrimination.
The following three cases reaffirmed the court’s opinion on appearances at work:
- IMATU v City of Tshwane Metropolitan Municipality, the court, dealing with two female metro police officers who refused to cut their hair, ruled that individual expression, in this case, trumped the business needs, which rendered the training agreements unlawful;
- Department of Correctional Services v POPCRU, the court held that if one’s hairstyle does not impede one’s ability to perform a job, then a policy requiring an employee to change their hairstyle could infringe rights such as the right to religion and;
- Dlamini v Green Four Security, the court, despite agreeing that the policy to have trimmed beards was an inherent requirement of the job, reiterated the importance of policies being different to Constitutional rights.
Even though South Africa’s legislation does not expressly provide for the right not to be discriminated against based on one’s tattoos, the courts have, in general, taking the side of the employee where a policy limits a chosen appearance that is connected to religion, expression or dignity, said Cliffe Dekker Hofmeyr.
As such, the minister’s statement, if put into practice, could, if challenged on the basis of a Constitutional right or the provisions of the Labour Relations Act 66 of 1995, be considered discriminatory and thus unlawful.
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