The context
In this decision, the Tribunal heard two grievances that raised the issue of ostentatious tattoos and piercing in the workplace. The Tribunal had to determine, against a backdrop of freedom of expression and the right to privacy guaranteed under the Charter of Human Rights and Freedoms (the “Charter”), whether the Employer, a provider of funeral services, could require that visible tattoos or piercings be covered up or removed by employees who are engaged in regular interactions with the clientele.
The Employer had asked its employees directly working with customers to conceal their piercings or tattoos using dressings or gloves.
It is important to emphasize that the tattoos and piercings targeted were neither invasive or offensive, and did not incite to violence.
The decision
The Employer conceded from the outset that the restrictions arising out of the policy on tattoos and piercings were a violation of privacy and the freedom of expression of its employees. However, in the Employer’s submission, this violation was a legitimate expression of its management rights and necessary for the proper conduct of its trade.
The Tribunal then only had to rule on the justification offered for having avowedly breached the right. In examining this argument, the Tribunal first recalled that the determination as to whether there exists a violation of fundamental rights and whether that breach is permissible, depends upon the four following conditions precedent to a violation to fundamental rights being exceptionally permitted:
- The objective pursued must be legitimate, serious and important;
- The restriction must have a rational connection with the objective;
- The infringement must impair the right as little as possible;
- The benefits achieved have to outweigh the harm caused by the rights violation.
In the Employer’s submission, the obligation to cover visible tattoos and piercings when an employee is in regular contact with the clientele constitutes a justified infringement of the right to freedom of expression and respect of privacy due to the rational connection with company objectives. It wishes to create a sober, neutral, neutral and solemn environment to welcome and meet the needs of a clientele coming from a broad range of religious and cultural communities.
The Union did not challenge the Employer’s right to establish legitimate, serious and important objectives. It argued however, that there was no rational connection between the restrictions imposed by the Employer on the employees and the underlying company policy.
The Employer imposed restrictions on the visibility of tattoos and piercing because it wished to avoid distracting, bothering or making uncomfortable clients mourning for one of their own. The evidence relied principally on the testimony of the Quebec Operations Manager who confirmed that the conservative dress code is an industry-wide norm, which is still taught in Thanatology courses.
The Employer presented no evidence from clients, nor any surveys or other similar evidence in relation to public perception. Furthermore, there have never been any complaints filed against the complainants
According to the Court, although the objective may be qualified as legitimate and serious, there was no evidence allowing for the conclusion that there was a rational connection between the exposure of a tattoo on the hand or a nose piercing and clients feeling discomfort.
The Court next explained that tattoos and piercings are forms of expression that exist throughout the world at all levels of society. Thus, direct and clear evidence would have been required to convince the Tribunal that this form of expression would trigger apprehension among the Employer’s clients. A simple impression or opinion based upon a perception, which seems to come from another place and time, is insufficient.
Having decided that there was no rational link with the objectives of the Employer, the Tribunal did not pursue its analysis and concluded by explaining that the rules on dress code and body image should evolve with the times and adapt to the current context, subject to the rights and freedoms of employees.
Syndicat des travailleurs des services funéraires Dignité v. Collins Clarke (CSI), une division de Service Corporation Internationale (Canada) (Réseau Dignité), 2021 QCTA 354 (Adjudicator : Me Amal Garzouzi)
Our view
In this decision, it appears clear that the employer had not provided clear enough evidence to justify its violation of freedom of expression and privacy of its employees. Furthermore, the fact that the tattoos and the piercings of employees were discreet was a factor in showing that the Employer was overreaching in the implementation of company policy.
In fact, a further look at existing case law on this subject convinces us that, although social mores have evolved and employers should tailor their policies accordingly, it remains entirely reasonable for employers to restrict certain types of tattoos, due to their position on the body, sexist or racist connotations or tendency to incite violence.
