Three60 Consult Logo

Tattoo Policy Precedent 2

Posted on: May 31, 2013

You might remember back in 2011, when the Spit Roast Catering Company (SPCC) won the case over the right to cover up a Maori worker’s tattoo. Claire Haupini was employed to help set up such functions, serve at them, and tidy up afterwards, effectively fulfilling a “frontline” role she, along with other staff, had direct contact with the company’s clients.

Ms Haupini, who was of Maori and European descent, had a moko on her left forearm. The design represented her, her children and her husband and also evoked her iwi Whakatoa, as well as Ngapuhi where her grandparents were laid to rest. When she first started working for SRCC, she was issued with a standard black shirt whose sleeves covered all but the tip of the moko. Subsequently, the SRCC introduced a new shirt with a shorter sleeve that revealed the entire moko.

After the introduction of the new shirt, Ms Haupini worked at least three shifts without incident. However, on 17 May 2010, she was employed for a function described as being at the top end of the kinds of functions for which the defendant catered. Most of those employed that day wore the shorter-sleeved shirts, although one or two might have been wearing the longer-sleeved shirt as a matter of preference. Before the vans left to go to the function venue, Mr Peet, a director of the SRCC, noticed the moko. He considered that company staff should not be displaying what he described as a large prominent tattoo at the function in question and asked the company’s Operations Manager Mr Brough to discuss the matter with Ms Haupini and see if she would mind wearing the longer-sleeved shirt.

Mr Brough took Ms Haupini aside and asked her if she would mind wearing the longer-sleeved shirt to cover the moko at the function. The plaintiff saw this as an instruction rather than as a request and as treating her differently from the other employees. However, she changed into the other shirt despite being very upset by what had occurred.

Before Ms Haupini left work that day, Mr Brough asked her if she wanted to work again in the coming weekend. She declined because she was still angry and upset but she did not tell Mr Brough the reason why she did so. Both Mr Peet and Mr Brough were at that time unaware of either the cultural significance of the moko to Ms Haupini or her feelings about what had occurred before the function. Her complaint was that she was singled out when she was asked to wear the longer-sleeved shirt.

Ms Haupini claimed that:

  • She had been directly discriminated against in terms of section 22(1)(b) and (c) of the Human Rights Act    1993 upon the grounds set out in section 21(1)(f) (race) and/or (g) (ethnic or national origins), or
  • The SRCC’s requirement that she should cover her moko was an act of indirect discrimination (section    65) in the sense that any rule against visible tattoos had the effect of treating wearers of ta moko    unfavourably on the grounds of their race and/or ethnic origins.

However, both her claims of direct discrimination and indirect discrimination were not established.

SRCC’s owner Graham Peet sought costs against the Human Rights Commission for wasting taxpayer money to pursue an unnecessary case, which cost him about more than $60,000 to fight.  The tribunal has now awarded SRCC costs of $15,000, to be paid by the Director of Human Rights Proceedings.  Tribunal chairman Roy Hindle earlier said the questions in the case lay at an intersection between significant cultural expectations and the reasonable concerns of an employer to be able to manage the appearance of its staff working in a “frontline” role.

Due to the similarities, SRCC’s win demonstrates that Air New Zealand would have a strong case if Claire Nathan, who was recently refused a job with the airline because of her forearm tattoo, decided to make a complaint to the Human Rights Commission. Let’s watch this space to see if this case goes any further…

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Subscribe to Newsletter

Christmas is coming…

Christmas is coming…

Once Labour Day has been [yes, believe it or not it’s this coming Monday], the next public holidays are at Christmas and New Year. It always feels like employers have to put a bit more thought into Christmas and New Year because: there are four public holidays; this is a time that many businesses have their annual closedown period; many employees take their annual leave; some employees don’t have enough leave to cover this period; some employment agreements have special rates for these public holidays; and, let’s face it, it is a busy busy busy time. In the next few weeks, my colleague, Tasneem Begum, and I will be offering a free webinar for those employers who want a bit more information around those tricky calculations for leave at this time of the year. We will also be able to answer the questions you have and the challenges you face with leave during the Christmas/New Year period. You are not alone with the questions you have – Questions we are often asked at this time of the year are about employing staff to cover the busy Christmas period

Read More
What the heck is going on with pay?

What the heck is going on with pay?

While we are conscious of the impact that inflation is having on wage and salary conversations, there are four other levers that have been, and are being, used to bring about fundamental change and significant uplift to pay in New Zealand. The Government is using these levers to drive increases in pay at various levels in ways that we may not be conscious of. However, when brought together as a single thread, they are having a big impact.

Read More
To Mediate or not to Mediate

To Mediate or not to Mediate

To mediate or not to mediate – that is the question… While William Shakespeare put into verse Hamlet’s soliloquy in endless agonising verse about dire choices with absolutely no chance of a happy ending – it is not so with mediation. Change the name, and the thinking around the word mediation. Let’s start thinking about it and calling it “an opportunity”. That’s really what mediation is; an opportunity for parties in conflict to come together and sort out their problem(s). It doesn’t have to be the only option, but it should be considered as a first step.

Read More
PREV NEXT