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CUPE Local 4000 v. The Ottawa Hospital

January 24, 2013

Arbitrator rules that The Ottawa Hospital cannot require employees to cover up large tattoos and remove “excessive” body piercings.

The Ottawa Hospital introduced a new dress code, which required employees to cover up large tattoos and remove excessive body piercings. Policies and practices related to infection control, hygiene and employee conduct – including a requirement that employees have a professional appearance and attire – had long been in place at the hospital and had not generated any controversy. However, in 2011, the Hospital introduced a comprehensive new policy, which addressed the issues contained in the pre-existing policies and introduced the new provisions respecting tattoos and piercings. The new policy applied to all workers, physicians, volunteers, students and contractors.

CUPE 4000, the bargaining agent for many service, trade and clerical employees at the hospital, including registered practical nurses, orderlies and porters, challenged the new policy’s provisions on tattoos and piercings on the basis that those provisions unreasonably infringed on employees’ right to express themselves in their appearance and were unjustified by any health or sanitation concerns, or any complaints by patients. The Union (and its witnesses) agreed that the safety of patients was the primary concern and made it clear that it had no issue with any dress code provision related to health and safety or sanitation, provided there was objective evidence supporting the rule. The Union also readily agreed that any hateful or offensive tattoos should be concealed. However, the new tattoo and piercing provisions could not be justified on these grounds, the Union maintained – rather, the Hospital was simply attempting to impose its view of a professional image on all its employees.

The Hospital argued that it was a matter of professionalism and that, even if patients did not complain, a perception that an employee was not professional would cause stress that could negatively impact the patient’s health. In urging the arbitrator to uphold the policy, the Hospital argued that longstanding principles applied by arbitrators to determine the reasonableness of employer rules should not apply in this case.

Arbitrator Lorne Slotnick held that the policy was unreasonable.

The arbitrator first rejected the Hospital’s argument that he should revisit the principles “universally accepted among arbitrators” for determining the reasonableness of management rules governing matters that are not covered in a collective agreement. The Hospital could not exempt itself from the requirement of reasonableness simply because it was a hospital, the arbitrator held, and noted that nothing prevented him from considering the Hospital’s primary goal of improving patient outcomes when assessing the reasonableness of the dress code.

Turning to the dress code, the arbitrator held that, consistent with previous cases, the starting point should be the premise that employees have a personal right to groom and attire themselves as they wish. If an employer wishes to constrain employees in some way, the employer must show that its policy is necessary, based on good and generally accepted business practices.

The arbitrator accepted the Hospital’s assertion that some patients might have a more negative first impression of an employee who sported tattoos or piercings than they would an employee who was not tattooed or pierced. He also accepted that a lack of complaints did not necessarily mean that some patients might not feel uneasy about tattoos or piercings. However he rejected the Hospital’s argument that there was a connection between these feelings and health care outcomes, holding that, aside from the personal opinion of the Hospital’s senior vice-president, the Hospital had provided no evidence demonstrating any such connection. Further, in 10 years, the Hospital had received only two unspecified concerns about tattoos and, given everything that happens to a patient in a hospital, it was not surprising that these issues were “virtually undetectable among patient concerns”.

While this was not a human rights case, the arbitrator also noted that the Hospital “could not and would not accede to the wishes of a patient who might be uncomfortable with a health care provider based on race or ethnic identity, even though some patients might harbour those types of prejudices.” Yet the Hospital was willing to comply with other types of prejudices that bore no relation to the quality of health care received by a patient. Far from being “forced” to accept tattoos and piercings, as argued by the Hospital, “the patient is merely receiving care from workers who reflect the diversity that one would expect in a big-city hospital. This includes employees who choose to decorate their bodies in ways that will not appeal to everybody. It is not patients who are being ‘forced,’ but rather employees who are being told to suppress aspects of their identity that are important to them.”

The arbitrator concluded that the policy did not meet the test of reasonableness. The Hospital seemed to be attempting to fix a problem that did not exist. Moreover, the policy was vague and had resulted in inconsistent enforcement throughout the Hospital and uncertainty among both employees and managers about what was appropriate which could only lead to further litigation. The arbitrator declared the new dress code policy to be void and unenforceable. The pre-existing code of conduct and other long-standing policies remained in effect.

(The arbitrator also held that the Hospital could require registered practical nurses to wear a lab coat while they were on duty, but not while they were off duty even though still on hospital premises.)

Click here read the decision.

Lawyers

Peter Engelmann, Colleen Bauman

Practice Areas

Labour Law