The Tel Aviv Regional Labour Court recently rejected a case brought by a waiter whose exposed skin was covered with tattoos, which he refused to cover while serving customers. The waiter had claimed for damages on the grounds that the employer's request that he cover his tattoos while serving customers was unlawfully discriminatory and that he had been dismissed in bad faith.
In its decision the court balanced the rights to freedom of expression of both the waiter and the employer and ruled that, in the circumstances, the employer's freedom of expression took precedence.
The plaintiff was employed as a waiter in a coffee shop. The tattoos visible on his exposed skin expressed his secular views, his sexual preference and a memorial for victims of the holocaust. The waiter was requested to cover the tattoos while serving customers. The waiter refused to do so and thereafter ceased appearing to work.
The waiter later filed a claim for damages on the grounds that the employer's request that he cover his tattoos by wearing a long-sleeved shirt was unlawfully discriminatory. He furthermore argued that he had been dismissed and that his dismissal was unlawfully discriminatory, contrary to the Equal Opportunities in the Workplace Law 1988, and in bad faith.
Alternatively, the waiter claimed that he had resigned in circumstances in which his resignation should be considered as dismissal.
The court ruled on the facts that the waiter had not been dismissed, but rather had resigned. The court also ruled that raising a claim of dismissal and alternate resignation is not possible, since the claims are factually contradictory.
The court considered separately whether the employer's request that the waiter cover his tattoos by wearing a long-sleeved shirt while serving customers constituted unlawful discrimination. The court ruled that the waiter had not proven that there was a connection between the request that he wear long sleeves and the content of his tattoos, and therefore had not proven that the request was discriminatory on one of the prohibited grounds specified in the law (eg, sexual preference or religious tendency).
The court ruled that, in any event, even if it were to assume that the grounds specified as prohibited in the law did not constitute a closed list and that a general principle of equality also prevails in private places of employment, the request to cover tattoos was a legitimate request in the circumstances.
In general, an employer is entitled to request that its employees adhere to a dress code, as part of the employer's prerogative to manage its business as it deems fit and avoid economic loss, but such prerogative must be exercised in good faith and with adherence to the measure of proportionality.
For further information on this topic please contact Shoshana Gavish at S Horowitz & Co by telephone (+972 3 567 0700), fax (+972 3 566 0974) or email ([email protected]).