Readers with long memories may remember my blog from a year ago regarding potentially offensive tattoos in the workplace.
That blog focused on the scenario where an employee bears a tattoo which offends another employee in the workplace, but what about a tattoo that you as employer feel is plainly inappropriate for the working environment?
It was that bastion of British journalism, the Metro, that inspired this thought. It interviewed a man who had had his face tattooed. Please do click the link below to the story itself to view the tattoo in all its glory – I find it difficult to describe accurately:
Each to his own of course. The interview reveals the impact that the tattoo has had. Perhaps unsurprisingly, Mum was not happy. The girlfriend admitted to feeling a “little sick” at first but appears now to have got over that. For our purposes, the interview also reveals that our hero was expecting a promotion at his work but was then told clearly that he would not be getting it specifically due to this new tattoo. Is that OK? Isn’t it some form of discrimination?
Yes it is, but on the face of it (sorry) not based on any of the Equality Act’s protected characteristics, and therefore lawful. The point is not beyond argument, however. What if the tattoo were of obvious or claimed religious significance and was therefore no more than someone exercising their European Convention rights to manifest their beliefs in the workplace, much like the crucifix cases of a few years ago (https://www.employmentlawworldview.com/european-court-of-human-rights-rejects-crucifix-appeals-again/)? But the right to manifest one’s faith is subject to your doing so without impinging on the rights and freedoms of others, one such right being that of the employer to seek to project a professional image. So while a tiny tattoo might be as hard to oppose legally as a tiny crucifix, even a deeply religious motivation would be unlikely to justify the degree of disfigurement in this case.
You could try to make some sort of age claim out of statistics showing younger people are more prone to getting themselves inked than the prior generation, but these are issues of detail when faced with something so overt and unavoidable as the hero of the Metro’s story.
Setting aside the discrimination possibilities, removing the possibility of promotion due to a “material” tattoo is unlikely to raise many risks for an employer. The only claim that an employee could attempt to bring is constructive dismissal which is a very high hurdle to jump. However, let us expand this situation – do you believe the employee is so far breaching your Dress and Appearance policy that you want to instigate a disciplinary process which could lead to his dismissal?
While the discrimination risk is likely to be small, remember that a dismissal will only be fair if it is for an acceptable reason. A Tribunal is likely to look at the basis of your decision to determine whether it is reasonable. This is likely to depend on the circumstances. Does the individual have a role including a large amount of client or other external-facing time? Is the relevant industry particularly white-collar? How far does the policy go – blanket ban on tattoos even if they are tiny or completely covered at all times? What corporate image does the employer reasonably seek to project? Is it somewhere legitimately posh or is it (as the Tribunal said witheringly in Eales –v- Halfords, a case about dyed yellow hair) just “a bicycle shop in Mansfield”?
You will therefore need to have good business reasons behind any dismissal due to a tattoo.
It is also worth keeping an eye on this topic. As tattoos become more widespread, it is clear that general attitudes towards tattoos are also changing. A very strict policy may soon need rethinking before it is challenged as no longer sustainable.
If your business is likely to be stringent in any way regarding tattoos or other aspects of appearance (piercing, clothing, hair), we strongly recommend you consider the business reasons why this is the case and then set out a clear and reasonable policy for employees to follow. This excludes, by the way, the surreal injunction in one staff handbook we saw recently that “beards must be grown in the employee’s own time”.