Discrimination against tattoos in the workplace

In the workplace, appearance matters. This is why some employers impose dress codes or introduce uniforms. But can your boss set rules on hair, piercings and body art and can you refuse to employ someone simply because they have a tattoo? Lloyd Clarke explains.

Earlier this week the conciliation service, ACAS, told employers that rejecting candidates simply because they have tattoos was wrong.

They said companies could be missing out on the best talent by allowing outdated negative attitudes to get in the way of their recruitment decisions.

ACAS also commented that if such prejudices were held, the pool of potential recruits would be narrow because so many young people have body art these days.

But is it discrimination to want to protect the image of your company? Can you legitimately refuse a person employment – or indeed sack them – for their taste in ink?

The Law regarding tattoos in the work place

Tattoo much

In July, Jo Perkins, a consultant in Milton Keynes, had her contract terminated because a 4cm image of a butterfly on her foot contravened the no-visible-inking policy of the firm for which she worked. The company said she had failed to cover it up.

She wasn't the first.

A 39-year-old mother-of-three from Yorkshire with the mantra "Everything happens for a reason" on her forearm was dismissed as a waitress in 2013 following complaints from customers.

The previous year, a Next employee complained he had been forced to resign from his job because his employers disliked his 80 tattoos. 

In all cases, the employers insisted they were acting within their legal rights and therein lies a potential hazard for a rapidly-growing section of the workforce.

Discrimination

Under UK law, workers have no standalone protection under discrimination legislation for having a tattoo. Tattoos and body piercings are expressly carved out of the definition of disability on the basis that they are not “severe disfigurements that are treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities”.

This might suggest that employers have free reign to discriminate, but they should tread carefully.

The fight is on

Some enthusiasts for skin markings insist it is deeply unfair to discriminate against someone because of their appearance and a number of e-petitions have been organised against tattoo-related discrimination in particular.

A 34-year-old from Birmingham who changed his name by deed poll to King of Ink Land King Body Art The Extreme Ink-Ite (previously Mathew Whelan), who describes himself as the UK's most tattooed man, has led a campaign to protect the employment status of people with body modifications. However, it remains the case that there is no sign of things changing in the immediate future.

Having said this, there is the possibility for discrimination claims to be raised against employers if the discrimination relates to something like age or religion.

A recent YouGov poll suggested a fifth of UK adults have tattoos, with those under 40 significantly more likely to have them. In contrast, less than 5% of over 65s have a tattoo.

This might mean that issuing a blanket policy forbidding tattoos in the workplace can unwittingly highlight generational prejudice which could raise complaints about age discrimination.

There is also the potential for claims of discrimination to be raised on the grounds of religion for employees who sport piercings, a hair style or tattoos as a manifestation of their belief system - such as a tattoo of a cross for a Christian, a beard on a Sikh or a Hindu employee who chose to pierce their nose.

In cases where the tattoo, a hairstyle or piercing is simply a matter of personal expression though, an employee has no legal protection save for where the employee has built up unfair dismissal rights through the length of service.

Put a policy in place

Policies which restrict tattoos are commonplace in the UK.

The Metropolitan Police bans them on the face, hands and above the collar line, as well as any which are "discriminatory, violent or intimidating" for example.

But if you plan to include a ban on tattoos in your employment policy, make sure you have clear, reasonable and justifiable reasons for your decision.

Alternatively, you could consider relaxing your policy.

Mcdonald’s recently changed their policy to say that “visible tattoos, whether they are Henna-type ones or the real deal, are allowed if they are unobtrusive and inoffensive.”

Moving with the times

Tattoos are now firmly part of the mainstream.

They are sported by mainstream celebrities like David Beckham and Cheryl Cole as well as some other unlikely famous faces; David Dimbleby had a scorpion tattooed on his shoulder at age 75 for example. Dame Judi Dench had a “Carpe Diem” tattoo for her 81st and David Cameron’s wife Samantha has long sported a dolphin image on her ankle.

So should employers keep pace with changes in attitude?

Although many encourage uniformity as a way of team building and building a brand image,

companies should consider the wider benefit of attracting and representing or being seen to attract and represent, a socially diverse workforce that embraces freedom of expression.

At Starbucks, for example, they have recognised that it’s no bad thing if their staff mirror the appearance of their customers.

Whatever your decision, you should make it clear to all employees and prospective employees where you stand on the issue.

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