Tattoos and piercings in the workplace

2016-10-10 Jennifer Renney posted:

Acas has recently reported that many people with visible tattoos and piercings are facing considerable discrimination in the workplace, because of the perceived negative attitudes of clients and customers. This is particularly the case in more traditional businesses, where attitudes towards tattoos and body art are likely to be having an effect on the diversity of the workforce.

Almost one in three young people have a tattoo, although not all of them visible, and Acas research shows that prejudicial attitudes are affecting employee attraction and career progression.

So, are tattoos and body art covered by equality legislation in the UK? If not, in what circumstances can an employer legitimately dismiss an employee for reasons relating to their appearance?

The Equality Act 2010 does not provide specific protection for individuals with body art and employers have considerable discretion as to how they deal with employees (or the recruitment of those) with tattoos. However, employees do have the right not to be discriminated against on the grounds of a protected characteristic (which include age, sex and religious belief). Accordingly, in some cases, a tattoo which is part of a religious practice could trigger protection from discrimination. Further, rules regarding body art which affect genders differently could elicit action under the Equality Act. For example, requiring women to cover tattoos but not men (because the employer considers that tattoos on men are more socially acceptable) is likely to give rise to a claim for sex discrimination.

Whether a dismissal for reasons relating to appearance will be fair will depend on the circumstances and whether the employer acted reasonably. For example, if an employer has a clear dress code policy which bans visible tattoos and a long-standing employee, who works in a customer-facing role and has knowledge of the dress code, gets a facial tattoo, dismissal for failure to follow a reasonable instruction is likely to be justifiable. However, in a situation where there is no dress code or other known rules on appearance at work, the decision may not be so straightforward. In either case, prior to making a decision consideration should be given as to whether the employee’s body art will actually have an impact on the business or their colleagues, ie, whether the ban can be justified, and if so, whether there are any risks in relation to discrimination.

In the meantime, whilst the fashion to have tattoos and piercings continues to grow, businesses should consider what their policy is, and whether they need a dress code to reflect this.

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