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Facing up to the cosmetic challenge

By Sarah Townsend,Senior Solicitor & Josie Toop, Solicitor

First published in The Press 29 Dec 2008

It’s fair enough for employers to expect their staff to be well-groomed. But some employers, particularly those in the retail or hospitality industry, give directions to employees about hairstyling, use of makeup and nail grooming. Is this legal?

To women who already wear makeup, a requirement to put some on for work may not seem a big deal. But other employees consider that they should not have to be “tarted up” for work, that it’s a throwback to years gone by, and should not be a lawful requirement of any job. 

If the employment agreement sets out that employees must wear makeup, the employer may be able to lawfully issue these kinds of instructions. However, there is an argument that such an approach is discriminatory and in breach of the Human Rights Act because it is generally directed at women. The Employment Court has to date declined to rule on this.

In a 2006 case (Williams v Kimberleys Fashions Ltd), an employee, Ms Williams, argued that she had been discriminated against on the basis of her sex because Kimberleys required her to wear makeup at work. Foundation reacted badly with her skin and she objected to wearing makeup as it was no longer the 1950s and she said women should have a choice.

The Employment Relations Authority found against Williams and said that “there is nothing unreasonable in a fashion retailer wanting its staff to look good, and that must include, within reason, the requirement to wear makeup.”

On appeal, the Employment Court noted that “there may well be workplaces where the nature of the work requires facial makeup. One obvious example could be a women’s cosmetic retail shop.... it is not beyond argument that an employer in a women’s clothing boutique could require staff to wear facial makeup so long as it was a mutual, contractual requirement.”

The Court declined to look at the matter in terms of discrimination and whether the instruction was contrary to human rights, preferring to look at it as a contractual issue.

The Court made it clear that unless wearing makeup is a condition of the employment, there is no legal basis for an employer to require it. 

The Court allowed Williams’ appeal, saying that the makeup requirement was not a term of her employment. Williams was found to have been constructively dismissed.

Whether directions to employees to wear makeup breach human rights/discrimination principles is still unclear.

In the meantime, employers will need to look at the circumstances to balance whether the advantages created by made up employees outweigh risks of challenges from disgruntled employees. If wearing makeup is genuinely a requirement of the job, this should be included in the employment agreement.

Otherwise an employer cannot reasonably require an employee to wear makeup.