I am quite confident that a great many of us have considered the possibility of getting a tattoo.  It may have been during the heady days of youth and only a fleeting fantasy, but a consideration nonetheless.  I will freely admit toying with the idea right up to the moment I realised that ‘inking’ myself would be the equivalent of taking a Toyota Prius and giving it a flame paintjob.  I would essentially still be a Prius.

People have all sorts of words, symbols or pictures permanently etched onto their skin usually voluntarily and often but not invariably with deep personal meaning to the recipient, (at the time, anyway).  I once worked with a man who had his own name tattooed onto his calf.  As far as I could fathom, he did so for those days when he drank himself to the stage that he forgot it, but even though this turned out to be quite common, he never took up my suggestion that his address might be more useful.

However, the prompt for this musing is something a little more serious, the potential for a tattoo to generate ill-will in the workplace.  We have seen cases about inappropriate dress and the “right” to wear/display religious symbols, but how do they translate to tattoos?  Take as an obvious example, an employee who in days gone by chose to have a swastika tattooed somewhere visible on his person. The swastika is a symbol that generates strong feeling around the world, an association with an ideology which still rightly lives raw in the minds of many Europeans.  It generates the same inward flinch which usually stopped us abbreviating the name of this firm to initials when we were called Squire Sanders.

A potentially tricky scenario can then arise.  What happens if you have an employee who has a swastika tattoo which cannot easily be covered up at all times during work?  What happens if another employee finds that symbol particularly offensive and complains that the tattoo creates a hostile working environment?  What solution can the employer suggest that is fair for all parties?

Firstly, it should not be assumed that the tattooed employee is necessarily a neo-Nazi gang member.  The swastika had a very long and varied symbolic history well before any fascist association.  In fact, it originates from the Sanskrit for “lucky or auspicious” and is a very sacred symbol in Hinduism, Buddhism and Jainism.  In addition, the Finnish Air Force also used it on its aircraft (in blue) during World War Two.

I accept that this hypothetical tattooed employee is unlikely to be a Finnish war veteran, but equally it does not mean that he did, still less does, actually hold Nazi views.  If you want to look tough, a rebel, someone to be scared of, what else are you going to pick as your tattoo?  For those who miss out on the Prius moment, the heady combination of drink, youth, peer pressure and rank stupidity can lead a chap to do foolish things quite without regard to what they could mean or will look like in later years.

We would therefore suggest that employers apply a test of that old lawyers’ friend, reasonableness.  Question whether the tattooed employee exhibits any other behaviours or attitudes that add to the offensiveness or the hostile environment complained of.  Ask if it reflects his actual views and if not, how he came to have the tattoo despite knowing (presumably) of its hideous connotations.  Do you doubt his explanation (“I was young, drunk and incredibly stupid”)?  Does he have anything else in the work environment which displays a swastika, or glorifies Nazi beliefs?

If the answer is no, a Tribunal is likely to find that it is unreasonable for the offended employee to claim that the tattoo alone creates a (legally) hostile environment.  Therefore, dismissing the tattooed employee simply for that reason will be unreasonable.  To reduce the risk of its even being suggested, however, it may be helpful to hold a meeting where the tattooed employee can explain the circumstances behind the tattoo to the offended individual.  A reasonable explanation could largely defuse the offence.

This may be slightly more difficult in the case where the offended employee has a very particular reason to be especially offended.  Regarding the swastika, an employee could have a family background heavily affected by Nazi crimes.  In such a situation, more care might need to be taken and adjustments may be suggested, such as seeking methods of covering the tattoo or even moving one of the employees to a different part of the office or different shift.  These actions could be seen as reasonable depending on the circumstances, but the dismissal of the tattooed employee is still very unlikely to be deemed reasonable unless there is much more to the giving of offence than merely the tattoo.

Of course the position may be different if the employee acquires the tattoo while grown-up, sober and superficially rational.  If you associate yourself with the symbolism of Nazism without any mitigating circumstances it becomes harder for anyone, employer or offended employee, to believe that it does not reflect your actual views. In such a case there must be a good argument that the employee getting the tattoo disqualifies himself from remaining in the role if it cannot be hidden and there is (as there must be) a reasonable prospect of offence to others.