Male facial hair has been having a bad couple of weeks. First, a New Mexico news network starts a nasty rumour that the average manscape is housing about as much faecal matter as a Portaloo at Flemington on race day. And now, to add injury to insult, the beard of at least one Victorian policemen is about to end up on the wrong side of a razor after an unsuccessful challenge to grooming standards prohibiting beards.

The applicant police officer had argued that the imposition of grooming standards by the Victorian Police Commissioner, which prohibited beards, goatees, soul patches or other forms of facial hair, breached Victorian anti-discrimination laws. 

The grooming standards had been introduced in various forms, ultimately under particular sections of the Police Regulations Act 1958 (Vic) that were introduced in 2012. The Police Officer argued that the prohibition on beards and other facial hair amounted to prohibited discrimination based on “physical features” (see section 6(j) of the Equal Opportunity Act 2010 (Vic)).This express protection of “physical features” is somewhat unique to Victoria.

It was accepted that facial hair did constitute a physical feature (and therefore, a protected attribute). As such, the grooming standards did have capacity to unlawfully discriminate against the applicant police officer. However, the Equal Opportunity Actexempts practices that may be discriminatory, where those practices are done under authority of or in compliance with other laws, such as the Police Regulations Act. Ultimately, the Court found that the imposition of grooming standards under the Police Regulations Act fell within a relevant exemption, such that no unlawful discrimination arose.

So, this particular case doesn’t serve as authorising general beard-discrimination: it relies upon a particularly narrow exemption. In fact, we now have confirmation that facial hair can amount to a protected attribute in Victoria. However, this case also raises the possibility that an employer may rely upon laws outside of the anti-discrimination regime in imposing grooming or other standards. The case also raises the more general question of how far an employer's grooming policies can impinge on personal expression through beards, bangs, burns, dork tufts and other facial fuzz.

Of course, not all workplaces have regulatory powers to set grooming standards, as with a police force. However, it is conceivable that employers may seek to rely upon other laws, such as work health and safety laws, to enforce grooming standards. 

In other jurisdictions without the “physical features” protection under anti-discrimination laws, bearded employees may challenge grooming standards in other forums. Take for example, the recent unfair dismissal case of Felton v BHP Billiton Pty Ltd [2015] FWC 1838, in which an employee unsuccessfully challenged his dismissal following his failure to comply with grooming standards. The employee had a goatee, which he refused to remove following the introduction of a “clean shaven” policy to ensure effectiveness of respirators at the employer’s Olympic Dam mining site. Occupational context was important in this case: the Commission accepted that the employer had a legitimate safety concern, and that the approach was warranted given inherent safety risks on mining sites. 

Of course, curtailing personal expression in the workplace is not limited to beard bans. Employees have unsuccessfully challenged grooming standards prohibiting studs, piercings, and body art see, eg Fairburn v Star City PR931032 (6 May 2003), Miller v Woolworths Limited (t/as Safeway) PR967104. Although, claims brought by men relating to earrings and long hair under sex discrimination laws have had some success (see, eg Bree v Lupero Ltd [2003] NSWADT 47; Virgin Australia v Taleski[2013] FWCFB 4191. 

None of the above should be taken to suggest that our Courts and tribunals will enforce policies to a Mad Men grooming standard (first series). In fact, the Fair Work Commission appears to be developing an appreciation for body art. In Dapto Leagues Club Ltd v Agius [2014] FWC 7953, the employer, a leagues club, notified a dispute under its enterprise agreement in connection with attempts to enforce a grooming policy after a waitress repeatedly refused to remove a lip ring. Deputy President Sams declined to deal with the dispute because it concerned an employer policy, and not a term of the enterprise agreement.

However, DP Sams took the opportunity to note that it struck him has somewhat ironic that the “strict approach [was] being adopted by a football club when one considers that probably the majority of professional footballers we see on our television every football season are covered in visible body art”, and went on to say that it was unrealistic for the Club to deny the employee a “right to self-expression” given “current standards”.

It remains to be seen as to whether “current standards” at Dapto Leagues club will embraced in workplaces elsewhere…At least for now, Victorian beards that don’t belong to policemen are safe.

Kuyken v Chief Commissioner of Police [2015] VSC 204