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A recent case of the Employment Relations Authority saw a student awarded almost $10,000 after her part-time job at a supermarket was summarily terminated for refusing to wear a hat to cover her blue hair.[1] While the owners of the supermarket said that the problem was the employee’s refusal to meet reasonable requests, and not the colour of her hair, the Authority found that she was not contractually obliged to wear the hat as there was no clause in her employment agreement or in any company rules or policies prohibiting dyed hair, or specifically requiring employees to wear a hat once hair was dyed an unnatural colour.

The employer tried to claim that it was “commonly understood” by all workers at the store that hair dyed an unnatural colour had to be covered, however, the Authority found that an unwritten rule was not enough to point to in the circumstances. There were also procedural flaws in the process followed by the employer in dismissing the employee.

Above all else, this decision serves a timely reminder to employers that employees must be fully aware of dress and appearance policies, and any other company policies. Otherwise, it can be very difficult to rely on them down the line.

In particular, employers should consult with employees when introducing new policies. This means providing proposed policies to employees with a reasonable amount of time to provide feedback, and then genuinely considering all feedback. The same process should be followed when varying or removing any existing policies. The reality is that a full consultation process may not always be required, and sometimes just advising employees of a change is enough. However, we recommend consulting wherever possible and always making it known to employees that policies exist, and making those easily accessible to all staff.

In saying that, we appreciate that the need to spell everything out to employees can be frustrating for employers, and of course there is still an expectation on both sides to act with common sense, and to be fair and reasonable at all times.

Whether it was reasonable for the supermarket to take such a position on coloured hair is another matter, but technically there are no laws preventing it. Generally, employers are free to set any workplace rules they wish, provided they are fair and reasonable in the circumstances, and are not in breach of other laws such as the Human Rights Act 1993.

If you would like assistance putting together some workplace policies or if you hold concerns about an employee’s compliance with existing policies, please get in touch with our specialist employment lawyers who are happy to help.

[1] Lummus v Shaws Group 2019 Limited [2022] NZERA 230.

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Please get in touch with our specialist employment lawyers if you have any questions.

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