Keeping up Appearances: Tattoos in the Workplace

Much like the heated debate earlier this year surrounding high heels in the workplace, tattoos have become a hot topic amongst employers and HR professionals. According to a recent poll carried out by YouGov in 2015, the average age a person chooses to have a tattoo is 21. With a growing younger work force, have our views on tattoos in the workplace changed? And how should we handle the subject?

Originally a sign of societal class and occupation, tattoos today have become a form of art and expressionism with celebrity endorsements such as; David Beckham sporting a multitude of tattoos across his body and Angelina Jolie advocating her beliefs through tattooed incantations. Dedicated TV shows such as ‘Tattoo Fixers’, social media networks and published magazines such as ‘Inked’ have shown us that modifying our bodies is a huge part of our mainstream culture – and it is expanding. One fifth of British adults currently have tattoos and this figure continues to rise. However, just because they are growing in popularity doesn’t mean they have hit the mark with everyone.

In many places of work, employers have imposed their own dress code policy, to maintain a certain level of professionalism and portray a particular image of their company. Dress codes are not unlawful per se, as long as they do not put one group of people at a disadvantage (for example banning headdress would potentially disadvantage Muslims and Sikhs; or requiring women to wear high heels when a low/flat heel would be just as smart, which could potentially disadvantage women).  The difficulty with tattoos however, is that they are not unique to a specific group of people with a particular, protected characteristic (the protected characteristics being age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation), therefore it is difficult to argue discrimination if a person is unsuccessful in a job application because they have a tattoo, or are dismissed because they will not cover up their tattoos in the workplace. For example, Karla Valentine, who had facial piercings and tattooed arms, was told by her employer (a nursery) that she was a “bad example to children”. She felt she had no choice but to resign as it was difficult to hide her tattoos in the scorching summer heat – even though she felt she was good at her job.

In August 2016, the conciliation service Acas published a research paper entitled ‘Dress codes and appearance at work: Body supplements, body modification and aesthetic labour issued guidance’. In the paper Acas recognises that “At present, individuals displaying tattoos, piercings, and other body modifications are not protected under the Equality Act 2010 (EA 2010”). It should be noted that the disability discrimination provisions contained in the EA 2010 cover severe disfigurements (e.g. scars, birthmarks); however disfigurements relating to tattoos which have not been removed, or piercings for decorative or other non-medical purposes, are explicitly excluded from the definition of severe disfigurement [Regulation 5 of the Equality Act 2010 (Disability) Regulations 2010 (SI 2010/218)]. This goes back to our earlier point that tattoos are not unique to a specific, protected group, making it difficult to argue discrimination. Nevertheless, the prohibition of tattoos, piercings, and other body modifications might result in disgruntled employees and the possibility of challenges to employer policies on the grounds that they constitute a breach of human rights.

“Employers should educate themselves about tattoos”

An interesting discussion arose in our office about henna tattoos or tattoos obtained for religious reasons. Henna tattoos are common in the Asian community, particularly when a woman is getting married. In this scenario, the tattoo would be obtained because of the employee’s religion or belief, or their race, and if the employer were to dismiss or punish the employee in these circumstances they would likely be acting contrary to the anti-discrimination laws. Similarly, if an employee had a religious tattoo (for example: a cross as an expression of their faith) and they were dismissed not because of the tattoo, but because the employer found the cross offensive. Again, this would be linked to the employee’s religion and belief, and may well amount to discrimination.

Acas observes that employers could be limiting their potential to hire quality candidates due to outdated attitudes towards body modifications. This is probably true and therefore employers should be flexible and judge the candidate on their skills and experience, rather than their tattoos. Of course, the difficulty is that at the same time the employer must balance out the need to promote a certain image of their company and brand. Maxime Buchi – the owner of Sang Bleu Tattoo studio, suggested that “Employers should educate themselves about tattoos and start building an understanding of what they are”. Businesses such as McDonalds are tackling the issue in a similar approach. When questioned on their attitudes towards staff body art, McDonalds stated that, “visible tattoos, whether they are henna type ones or the real deal, are only allowed if they are unobtrusive and inoffensive”. McDonalds have developed a mutual understanding that if their employees are going to have tattoos, they must remain inoffensive towards their customers and at their own discretion. In the case of Schmidt v. Austicks Bookshops Ltd [1977] the Court stated: “An employer is entitled to a large measure of discretion in controlling the image of his establishment, including the appearance of staff.” This is still very much the status quo, and the courts continue to take a conservative approach towards dress code and try not – as far as possible – to interfere with an employer’s business decision unless it falls foul of the law.

If you are an employer we would suggest the following practical steps:

  • Ensure you apply dress codes equally;
  • Ask employees to cover up visible tattoos or replace large piercings with smaller studs, where possible;
  • If you are imposing a dress code on someone who feels it is unfair/discriminatory, ensure that your actions are a proportionate means of achieving a legitimate aim (‘objective justification’);
  • If an issue arises, try and resolve it informally with your employee but remember both parties will have to compromise.

If you are an employee we would suggest the following practical steps:

  • Be flexible – it is far less hassle covering your tattoos during office hours than getting into conflict with your employer, resulting in an awkward working environment and possibly even dismissal;
  • Try and reach a compromise with your employer – if you are not meeting clients, it may be more acceptable to show your tattoos/piercings;
  • Replace large piercing jewellery with smaller studs during office hours.

Remember always take legal advice.

If you have any questions about your obligations as an employer, or are concerned about an issue at work, please contact Gelbergs’ Employment Team on 0207 226 0570 or email [email protected]

This blog is for information purposes only and is not a definitive statement of law. It is correct as of the publishing date, but may become out of date as the law changes. You should always seek professional legal advice about your particular circumstances.