Tattoos in the workplace – a right to ink?

Tattoos are now commonplace and many employees have them. However, what happens if an employer asks for them to be covered up or even uses them as a reason not to hire someone? Is your employment policy up to date with this development in HR? Our article tells you more.

Given that tattoos are becoming increasingly common in the population in general, it is very likely that employers may encounter employees with tattoos ranging from small hidden images to large tribal-style inkings.

How to handle the issue of tattoos in a way that does not demotivate employees but still ensures that customer service and company image are upheld can be seen as a tricky issue to resolve.

In order to construct a robust and practical approach on the matter, employers need to consider their approach to staff with tattoos and also their reasons for needing to address the issue. Some employers handle the issue by ignoring it as they do not feel it affects the employee’s ability to undertake their work. Other employers believe that the image their staff portray to customers is an intrinsic part of their role and that visible tattoos, facial piercings or non-traditional hair styles could cause a poor customer image.

An employer also needs to consider what their position is in law when taking an official company stance on tattoos. After all, the law will be called into play if there is a grievance or employment issue and an employer needs to be sure that they have taken all necessary steps to optimise their legal position.

The first question that they need to ask is whether the tattoo affects the employee’s performance at work. This is affected by the nature of the employee’s work and the people with whom they come into contact.

A public-facing employee could generate complaints from the public about their appearance; this could give the employer the justification to dismiss the employee (assuming that there were no non-public facing roles to which the employee could be moved). It could be considered a ‘proportionate means of achieving a legitimate business aim’ – in this instance, stopping loss of custom which might harm the business. This would only follow after detailed discussions with the employee on how to mitigate the effect of such complaints such as covering the tattoos.

However, if the employee is not on public view and is unlikely to come into contact with customers and clients, then such a requirement might be considered by an employment tribunal to be unfair or unreasonable. This may be the case unless the tattoos that are visible are of an offensive nature and cause offence, distress or worry to other employees.

The company policy on tattoos needs to be fair but also ensure that the company has the ability to remove staff whose tattoos are deemed unacceptable. This will stand the employer in good stead if a case reaches the Employment Tribunal because they will be seen as having taken practicable steps to ensure fairness.

Dealing with tattoos can be also be a sensitive issue if the tattoo is a requirement of a religion.

It could be discriminatory to fail to employ or to dismiss because of the tattoo. Hinduism is one faith that uses tattoos as a means of religious expression and the Maori culture uses them to express cultural and spiritual identity.

The person with the tattoo would have to prove that the tattoo is a requirement of their religion or belief; however, the case of Eweida and Others v UK 2013 ECHR [37] in the European Court of Human Rights established that a religious symbol such as a cross or body marking does not have to be a ‘core component’ of that belief but is protected under discrimination law if it is a manifestation of the employee’s beliefs. A piece of body art that is religious in nature would probably fail to qualify if it could not be proved that the wearer sincerely held those beliefs.

Another area in which an employer might face legal action would be a situation where they had imposed a blanket ban on tattoos and it could be proven that the majority of people with visible tattoos are below 30 years old (and appearance was not an essential requirement for the job). This could result in a claim of indirect discrimination on the grounds of age.

Body piercings and tattoos are not counted as severe disfigurements under the Equality Act 2010 and therefore people who have them will enjoy no protection against discrimination in that sense.

The implications of a policy should be considered when drafting it or considering its introduction. The effect of such a policy on existing employees who already have tattoos should be taken into account.

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