This post was contributed by Peter MacTavish, Associate, Norton Rose Fulbright Canada LLP (Ottawa) and Brittany Hinds, summer student, Norton Rose Fulbright Canada LLP (Ottawa)
A recent arbitral decision invalidating the Ottawa Hospital’s restrictions on employee piercings and tattoos is yet another reminder that employers must have objective evidence to support the implementation of professional dress standards in their workplaces.
Background of the Case
The Ottawa Hospital implemented a new dress code policy in March 2011. The policy required that hospital employees cover any large tattoos and remove any excessive, visible body piercings. The union filed a grievance challenging the dress code as an unreasonable and unjustifiable “infringement on employees’ rights to express themselves in their appearance.”
The union led evidence demonstrating that many employees felt that their tattoos and piercings were essential to their personal identity and self-expression. The hospital argued that some of its patients were put off by body art, and that its restrictions on visible piercings and tattoos were not too onerous for its employees.
The Arbitrator’s Decision
Arbitrator Lorne Slotnick allowed the union’s grievance. He found that the policy did not meet the universally-accepted restrictions on an employer’s right to make rules in the workplace, as set out in Re KVP Co Ltd. and Lumber and Sawmill Workers Union, Local 2537 (1965) 16 LAC 73.
Among other things, the KVP criteria dictate that rules unilaterally introduced by the employer and not subsequently agreed to by the union must be clear and unequivocal, and not unreasonable.
Arbitrator Slotnick rejected the employer’s argument that the KVP criteria should not apply in the context of a hospital. He also found that the hospital’s rules regarding piercings and tattoos failed to meet the two criteria listed above.
First, he found that these prohibitions were unclear and vague. He agreed with the union that the policy had to be clear in order to ensure that employees knew what attire and accessories were permissible at work, and to ensure that supervisors knew what sanctions to enforce. He found that the policy’s vagueness had already resulted in uncertainty and inconsistent enforcement.
Second, he found that the hospital’s ban on excessive piercings and large tattoos was unreasonable. During the arbitrator’s assessment, the onus was on the hospital to advance objective evidence to demonstrate that its dress code was reasonable.
While Arbitrator Slotnick acknowledged that some patients may have a negative first impression of tattooed or pierced staff members, he concluded that the hospital had failed to establish a connection between these negative impressions and the actual provision of health care. Furthermore, the hospital had only received two complaints about staff tattoos in over 10 years. Arbitrator Slotnick found that the hospital was attempting to accommodate “its patients’ perceived prejudices and stereotypes about tattoos and piercings,” despite having no objective evidence that they had any impact on health care.
The union’s grievance also challenged another hospital policy, which required nurses to wear their lab coats at all times while on hospital premises, including while on break. As with the hospital’s restrictions on tattoos and piercings, Arbitrator Slotnick found that the employer lacked any evidence demonstrating that this policy was necessary.
As seen in Arbitrator Slotnick’s award, the reasonableness of tattoo and body piercing restrictions will be determined by balancing the interests of the employer against those of its employees. As a result, employers wishing to implement such restrictions must support their policies with objective evidence demonstrating that uncovered tattoos and piercings have a detrimental impact on their business interests.