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Tattoos - (ink)compatible with the workplace?

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01 January 2015, at 12:00am

NICK JONES and MATTHEW HOBBS discuss the growing popularity of tattoos and piercings, the need for a practice policy on such things and the importance of avoiding various forms of discrimination in relation to them

GIVEN that the oldest examples date back nearly 6,000 years, and with speculation that the practice has been around for considerably longer, it is probably a surprise that any issue relating to tattooing hasn’t yet been resolved.

When the wife of the Prime Minister has her own piece of visible, permanent body art, surely it’s time to put any debate to rest? Interestingly, whilst tattoos have surged in popularity in recent years, the legal position hasn’t quite caught up with public opinion on the subject and 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 front-line 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.

So, what is the scope of an employer’s discretion in this matter? The answer is surprisingly wide. 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, by way of discrimination, or harassment – each of these terms having a specific meaning, dictated by the Act.

Discrimination is only classed as such for the purposes of the Act if it is based on a “protected characteristic”. The protected characteristics covered are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Discrimination can be either direct or indirect. Direct discrimination arises when an employee is treated less favourably as a result of a protected characteristic. Indirect discrimination occurs where a “provision, criterion or practice” of the employer is applied equally to all employees, but has the effect of causing less favourable treatment to those with the protected characteristic.

An example of indirect discrimination is a policy that only allows for full-time working hours. Given that women are more likely to have childcare responsibilities and therefore to work more part-time hours than men, this can be seen as being 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. Indirect discrimination, however, may arguably arise in certain, limited circumstances.

One of the few protected characteristics that can relate to physical appearance is that of disability. “Disfigurement” is recognised as a potential disability; however, Part 2 section 5 of the Equality Act (Disability) Regulations 2010 expressly excludes both tattoos and piercings from this protection, regardless of how prominent or offensive they may be.

A potential ground of challenge 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 could be made that any blanket ban would be indirectly discriminatory.

However, the bar is high and there are a few hurdles to overcome. Previously decided cases have established that to classify as a “belief ” it must be genuinely held, must be a belief and not an opinion or viewpoint, must be a belief as to a weighty and substantial aspect of human life and behaviour, must attain a certain level of seriousness, cohesion and importance, and it must be worthy of respect in a democratic society.

So, while a lightsaber tattoo may be argued to be an expression of the “Jedi” religion, this is unlikely to pass the test of seriousness, cohesion and importance to afford the protection of the Act.

The argument could also be raised that as a group, young people are more likely to be “inked”; therefore, any antitattoo 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.

It is important to note that even if indirect discrimination is proved, this does not necessarily mean that the law will intervene. Indirect discrimination is capable of being “objectively justified”, if the policy is in place to address a “legitimate aim” and is proportionate to achieving that aim.

In Eweida v. British Airways, a case involving a Christian employee wearing a crucifix at work, the Court of Appeal held that BA’s policy, which sought the consistent appearance of its customerfacing staff, was a proportionate response to a legitimate aim.

The European Court of Human Rights disagreed. Considering the matter on the basis of Ms Eweida’s article 9 right to freedom of thought, conscience and religion, the ECHR held that the policy could not be objectively justified – the crucifix was discrete and there was no evidence to support the view that wearing it could adversely affect public opinion of BA.

In other cases, however, such as one involving the right to wear a full-face veil in a teaching role (Azmi v. Kirklees Metropolitan Borough Council), or another concerning the right to wear a crucifix whilst practising as a nurse (Chaplin v. Royal Devon & Exeter NHS Foundation) restrictions have been held to be enforceable.

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 initially held to be indirectly discriminatory.

ACAS, the publicly-funded nongovernment organisation set up to assist in resolving employment disputes, has recently provided updated guidance on dress code policies, which includes consideration of tattooing and piercing. While the comments are not prescriptive, 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. So, if an employer has a strict policy regarding tattoos/ piercings, this is likely to be a bar to employment for certain individuals, with little protection afforded under the current discrimination legislation.

What then, of the employer who seeks to introduce a new, more stringent policy on tattoos and piercings, or an employee who intentionally contravenes 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 may be considered to be fair, one of which is conduct. Issues of conduct can include the refusal of a lawful request, such as the request to cover any visible tattoos or piercings.

In deciding such a claim, the Employment Tribunal would consider whether the lawful request was reasonable. In the case of a tattoo policy it is likely that this 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 wishes to achieve?

While the law in England and Wales is not likely to tolerate actions such as those reported from the Japanese city of Osaka, where in 2012 government employees were inspected for existing tattoos and prohibited from obtaining any more, regardless of where on the body they were placed, it is clear that employers do have a considerable level of discretion in their tattoo and piercing policies.

It is wise to have such policies in a written and accessible format, and to ensure any changes in policy are reasonable and communicated effectively to employees, but the grounds for challenging such policies are limited under current legislation.

Whether this remains the case for the future is yet to be seen. It is unlikely that your local bank manager will be adorned with a Mike Tysonesque facial design any time soon, but 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.