In recent times tattoos have increased in popularity, particularly now that many celebrities have now taken up the craze. David Beckham is leading the way and is reported to be the proud owner of at least 32 tattoos, including ‘full sleeves’ on both arms. Many others, including his wife, Victoria, have now followed suit choosing to decorate their bodies.
This popularity does not seem to have extended into the workplace though, with many employers taking the view that tattoos send out a negative image, which does not reflect the ethos of their business.
Recently, one organisation that has been in the spotlight for its policy on tattoos is the Metropolitan Police, as they continue to ban officers from having visible tattoos on their hands and faces. The Police Federation of England and Wales thinks that this ban may be hampering the recruitment of promising candidates in this modern society, where tattoos are becoming more and more popular.
So how far can employers go to ban tattoos?
Clearly, under UK law employees have no specific protection under discrimination legislation for having a tattoo. However, employers may still want to tread a little carefully before just banning tattoos completely.
An employee’s tattoo may relate to their religion or belief. Therefore, an outright ban or forcing someone to cover up the tattoo could lead to a religious discrimination claim. However, if a consistent policy was applied to all employees, employers may be able to defend an indirect discrimination claim if they could show that the policy was ‘a proportionate means of achieving a legitimate aim’. For example, that the company wants to portray a certain professional image to customers or clients.
Another issue which may come to the forefront is age discrimination. Tattoos seem to be far more popular with younger members of the population. Therefore, if tattoos were to be banned this may disadvantage younger people – a creative, disgruntled employee, or former employee, may try to bring an age discrimination claim if they feel they have been poorly treated because of their tattoos. Again, employers may be able to justify the treatment on legitimate grounds. However, even if this is possible, from a commercial perspective, employers should also wise up to the possibility that they are potentially losing out on young talent by refusing to employ those with tattoos, as has been highlighted recently by the Police Federation.
It is also important to remember that once an employee has two years’ service they have the right not be unfairly dismissed. It is unlikely that it would be fair to dismiss someone for having a tattoo unless there is a clearly defined dress code policy in place which the employee is aware of but has failed to follow, or the employer can demonstrate that the tattoo is likely to cause offence, for example if it was racist or sexist in nature.
Employers do still have the flexibility to manage tattoos within the workplace, and policies that restrict tattoos continue to be common. However, in light of the potential for the employer to land themselves in hot water, it is sensible for any restrictions to be clearly set out in a formal dress code policy.
Helpfully, ACAS has issued guidance which states that employers should have sound business reasons for requiring tattoos to be covered up and they recommend that any dress code policy should be written down and communicated to employees so that they understand what is expected of them. Employers may also need to be flexible, particularly if introducing a new policy, as tattoos can be expensive to remove, and not all current employees may be able to cover their tattoos up.
For now employers can continue to exercise control over their employee’s appearance when it comes to tattoos. However, given the shifting face of this popular trend it is likely to remain a controversial issue.
For more information about tattoos in the workplace or dress codes, or if you need further advice in relation to discrimination or any other aspect of employment law, please contact one of Howes Percival’s dedicated employment lawyers.
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