Sri Lankan authorities recently caused world-wide controversy as they deported a British tourist for having a Buddah tattoo on her arm - "insulting" the island's main religion. The acceptability of tattoos in modern life is often source of debate, particularly in the workplace where the employer might view a tattoo as harmful to the business. But the employee might think they are being discriminated against.
Amy Jones, Employment Law solicitor at Thorntons Solicitors, discusses the complex issue of tattoos in the workplace and why employers must have a clear and justifiable policy in place.
At the moment, employers have considerable discretion as to how they deal with employees (or the recruitment of those) with tattoos, as having a prominent tattoo can still have social and cultural stigma attached to it. For customer facing roles in particular, the presence of a visible tattoo is likely to be viewed as a negative factor and an employer is entitled to prescribe a minimum standard of dress and appearance for their staff and this can include a requirement to cover up any tattoos.
If there is a policy in place, its terms should be reasonable and be capable of being justified. At first glance, a prohibition on tattoos, or their open display, may seem reasonable as employees with tattoos generally do not have any special or additional legal protection compared with other employees, but the position can be more complicated.
Employees do have the right not to be subjected to discrimination because of so called 'protected characteristics'. While having body art is not in of itself protected, the nature of the tattoo and the way an employer acts can bring the matter into the context of equalities law.
If an employer has a dress code it should be enforced sensibly and apply to all employees, the rules should affect the genders equally and this can be important given the potential location of tattoos, e.g. on a person's ankle. An employer must ensure that any policy cannot be viewed as discriminatory because of gender.
Equally, if the tattoo involves religious iconography this could trigger protection as religion and belief are protected characteristics. From an employer's point of view, the presence of such a tattoo could be viewed as a merely a statement of style while to the employee it may have a deeper religious significance.
In such a situation, an employee may resent being told they have to cover the tattoo or challenge the refusal to be offered a job, therefore depending on the circumstances, there could be an accusation of discrimination.
Even if it were deemed to be discrimination, the law has always differentiated between the right of an individual to have a faith or belief (or indeed no faith) and its manifestation. In terms of equality law and the overarching right to freedom of expression, the law has permitted limits in this context. So could a ban on displaying tattoos (if it were deemed discriminatory) be justifiable?
Often employers due to the possible preconceptions, be they social, cultural or otherwise, have views on tattoos that might not stand up to scrutiny. The key is to consider the terms of a policy carefully and where there could be a dispute.
Employers should be able to explain the rationale behind their policy, but consultation and dialogue with employees is also wise so that concerns can be addressed before matters get out of hand.
Amy Jones is a Senior Solicitor in the Employment Law team. If you would like to discuss any of the issues raised in this article, please contact Amy on 01382 229111 or email email@example.com.