Tattoos in the Workplace: Right On, or Not Right?
Nick Jones, Associate Director in Gregg Latchams’ Employment Team, questions how much discretion do employers have with policies regarding their employees’ appearance?
Given that the oldest examples date back nearly 6000 years, and with speculation that the practice has been around for considerably longer, it is probably a surprise that there are still employment issues around tattoos. With upwards of 30% of UK workers aged between 25 and 39 being ‘inked’, surely it’s time to put any debate to rest?
Interestingly, while tattoos have surged in popularity in recent years, the legal position hasn’t quite caught up with public opinion on the subject. In fact, tattoos and employment continue to cause issues for employers and employees alike.
In an age of marketing and brand recognition, it is probably unsurprising that most businesses will seek to retain a level of control over their public image. This includes the presentation and appearance of their frontline or customer-facing staff, the commonly accepted logic being that a customer or client will make certain inferences regarding the company from the appearance of its representatives.
Under UK law, there is little restriction on an employer’s dress code and appearance policy, unless it offends the provisions of the Equality Act 2010 and so discriminates or harasses the individual.
Discrimination is only classed for the purposes of the Act if it is based on a ‘protected characteristic’, which covers age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
However, discrimination can be either direct or indirect: direct if an employee is treated less favourably, or indirect when a decision applies to all employees, but causes less favourable treatment to those with the protected characteristic. One example is a policy that only allows for full-time working hours: as women are more likely to have childcare responsibilities and therefore to work part-time, this can be considered discriminatory on the basis of sex. As any policy on tattooing or piercing is likely to be applied universally across all employees, or at least across all employees of a similar position or role, such policies will not be directly discriminatory.
Potential ground for conflict to an exclusive policy on tattooing and piercing comes via the protected characteristic of religion or belief. If a tattoo, or a piercing, forms an integral part of a person’s religion or belief, the argument is that any blanket ban would be indirectly discriminatory. However, previous cases have established that to count under this rule, the belief cannot be an opinion, be genuinely held, form a weighty and substantial aspect of their life, must be a serious belief, must make sense, and worthy of respect in a democratic society.
An alternative argument is that as young people are more likely to be ‘inked’, any anti-tattoo policy could be discriminatory based on age. But with tattoos growing in popularity amongst the older generation also, how long this may be relevant is debatable.
Even if indirect discrimination is proven, this does not necessarily mean that the law will intervene. Indirect discrimination can be ‘objectively justified’ if the policy is a proportionate means of achieving a legitimate aim .
In Eweida v British Airways, a case involving a Christian employee wearing a crucifix at work (an expression of her religious belief), the Court of Appeal held that BA’s policy, which sought the consistent appearance of its customer-facing staff, was a proportionate response to a legitimate aim.
Therefore, if an employer can show a legitimate reason for a policy regarding tattoos and piercings, and the restrictions imposed are proportionate to that aim, the policy will be enforceable, even if it is indirectly discriminatory.
ACAS, the publicly-funded non-government organisation set up to assist in resolving employment disputes, provides guidance on dress code policies including consideration of tattooing and piercing. While its comments are not enforceable as law, they encourage employers to strongly consider the reasons behind any dress code, and to have such policies written down and clearly communicated to all staff. Emphasis is placed on policies being reasonable and proportionate.
If an employer has a strict policy regarding tattoos and piercings, this is likely to obstruct certain people being employed by them, with little protection afforded under the current discrimination legislation. What happens if the employer introduces a new, more stringent policy on tattoos and piercings? What happens to a current employee who intentionally breaks an existing policy? This strays into the area of dismissal, and whether such a dismissal is ‘fair’.
The Employment Rights Act 1996 sets out five specific grounds for dismissal that are considered fair. Issues of conduct can include the refusal of a lawful request, such as a request to cover any visible tattoos or piercings. In the case of a tattoo policy, it is likely an Employment Tribunal will include consideration of whether the policy itself is reasonable. Similar rationale to the discrimination legislation is likely to be used – does the policy address a legitimate business need, and if so, is the effect proportionate to the outcome it is designed to achieve?
It is clear that employers do have a considerable level of discretion in their tattoo and piercing policies, and it is wise to have such policies in an accessible written format. You should ensure any changes in policy are reasonable and communicated effectively to employees, but the grounds for challenging such policies are limited under current legislation. Tattoos arguably enjoy wider public acceptance now than at any other point in history, and it may only be a matter of time before the law catches up.
If you would like further advice on this issue, or any other aspect of employment law, please contact either Nick Jones or Cecily Donoghue in our Employment Team.