According to the British Association of Dermatologists, 20 per cent of Britons possess some form of body art.
The celebrity world is inhabited by some famously inked individuals. The extensive designs sported by the footballer David Beckham and X factor judge Cheryl Fernandez-Versini have attracted tabloid column inches worldwide.
Question Time and election night host David Dimbleby shocked the nation when he revealed he had got his first tattoo at the age of 75 (a scorpion on his shoulder). It would be remiss not to mention the prime minister’s wife, Samantha Cameron, who has a tattoo of a dolphin on her ankle. Despite their growing popularity and acceptance among a certain demographic, it appears to be the case that tattoos, or at least visible tattoos, continue to be unacceptable in many workplaces.
There are a number of high profile employers, whose stance on tattoos has proven unpopular with employees and new recruits, not least the case of the trainee teacher who was sent home on her first day at a Hartlepool Catholic school earlier this term because the tattoos adorning her feet, hands and neck were deemed unacceptable and inappropriate.
In July this year, a female consultant in Milton Keynes had her contract terminated because a 4cm image of a butterfly on her foot breached the “no-visible tattoos” policy of the firm she worked for.
British Airways’ own policy came under recent scrutiny when a cabin crew interviewee’s chances were dashed when it was discovered that she had a tattoo of the word ‘Aquarius’ inked on her foot – a breach of the company’s uniform standards policy.
Not every organisation operates such a hard line and a recent example of a more relaxed approach can be demonstrated by the British Army who, until recently, prohibited all tattoos that could not be covered by a shirt. Capita, which runs the army recruitment programme has reviewed the policy on tattoos and suggested that a relaxation in policy could help to attract and retain higher numbers of reservist soldiers. On the back of this, the Ministry of Defence announced in October 2014 that tattoos are allowed on hands and on the back of the neck but not on the face or any neck areas that could be visible on passport photos.
Such high profile cases and diverging views on tattoos have ignited a debate about how far rules on dress and appearance blur the lines between freedom of expression and the right of employers to lay down parameters dictating acceptable standards of appearance at work. The British Sociological Association commissioned a report in 2013 from the University of St. Andrews, which found that managers frequently expressed negative views about tattooed staff and that those who were interviewed felt that there was a “stigma” attached to tattoos.
While tattoos are more commonplace than ever before, there is no specific legal protection afforded to employees or workers of either sex, who suffer harassment or discrimination because they have (or plan to have) a tattoo. In fact, the Equality Act 2010 expressly excludes tattoos (and body piercings) from the definition of disability on the basis that they are not “severe disfigurements”.
Business owners need to remain vigilant in case their employees have body art (or temporary tattoos such as henna) for religious or cultural reasons. Such cases will need to be handled sensitively and carefully, to avoid the inference that a measure taken concerning tattoos is discriminatory. For example, a blanket “no tattoos” policy may, in certain circumstances, amount to indirect religious discrimination.
Even if you do have grounds to take disciplinary action against an employee who has breached your policy on tattoos, business owners should be wary of making a hasty decision in circumstances where the employee has more than two years’ continuous service and therefore has the right not to be unfairly dismissed. Employers must follow a fair procedure and measures short of dismissal will need to be considered, for example, asking the employee to wear clothing that covers the tattoo or perhaps redeployment into a non client facing role.
Where does your business stand on tattoos?
Many employers have a dress code, which may already offer some guidance on expectations of minimum standards of appearance in the workplace.
If you have not already considered tattoos specifically, a review of your policy is recommended. The factors to consider include the context of the world that your employees or workers operate, your corporate image and, ultimately, the contact your workforce has with your clients or customers.
A zero tolerance policy on tattoos will probably be impractical and, statistically speaking, may to lead to one in five of your workforce being in automatic breach of the policy. It may also have the unintended consequence that you acquire a reputation as a non-tattoo friendly organisation which may result in a decline in applications from candidates who would be perfect for a particular vacancy, but for the tattoo of a heart on their ankle.
If all or part of your business is client or customer facing, your policy should draw lines between jobs where visible tattoos may or may not be appropriate. Where you do have to apply a tattoo policy inconsistently for business reasons, you should be prepared to provide your rationale to those who ask.
Finally, it is recommended that you consult with your employees on any prospective change to your dress code policy, especially if it forms part of the employees’ contracts of employment.
Jennifer Cooper is a solicitor in the employment team at Barlow Robbins.
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