Don’t let tattoos colour your judgement

Acas recently asked employers that ban visible tattoos to reconsider their approach, but what's the legal stance?

How employees present themselves in the workplace has been in the spotlight lately, with litigation on religious dress and an online petition calling for it to be made illegal to require women to wear high heels at work. Most recently, conciliation service Acas has encouraged employers that ban visible tattoos at work to reconsider their approach.

How do employers currently approach tattoos in the workplace?

A recent survey indicated that up to 30% of those aged under 24 have tattoos, and a fifth of people under 40 have been inked. But despite their rise in popularity, and growing acceptance generally, the approach to tattoos in the workplace still varies widely.

Some organisations are concerned about how tattoos might affect their corporate image and professionalism so have adopted a strict approach to appearance. Others, traditionally those working in creative industries or with younger clients, take a more tolerant approach.

Recent studies have suggested that people with visible tattoos are still disadvantaged when it comes to applying for a job, regardless of how well-qualified they are. This kind of evidence has led Acas to suggest that employers who ban tattoos, or who will not hire people with visible body art, are potentially missing out on talent.

Some organisations have already started to reconsider their ‘no tattoo’ policies. For example, after an online petition Starbucks’ employees are now permitted to display ‘tasteful’ tattoos (provided they are not visible on the face or throat). The army no longer automatically rejects candidates whose ink can be seen.

Is there a discrimination risk if tattoos are banned at work?

Businesses are entitled to form their own rules on appearance at work, provided they do not put a group with a particular protected characteristic (such as age, race, sex, or religion/belief) at a disadvantage. Potentially discriminatory restrictions can be justified if they are a proportionate means of achieving a legitimate aim, such as promoting a corporate image.

There is no law protecting tattooed employees from being discriminated against solely on the grounds that they have a tattoo. However, those who are tattooed because of their race or as a manifestation of their religion or belief (e.g. temporary henna tattoos) may be able to bring a discrimination claim.

According to a 2015 YouGov poll the average age at which a person chooses to get a tattoo is 21. There is, therefore, a risk of generational prejudice. Younger employees might try to argue that banning tattoos, while applicable to the entire workforce, indirectly affects them more than others and so is age discrimination.

What about unfair dismissal?

Candidates who are not recruited because they have a visible tattoo have no remedy unless they're discriminated against because of a protected characteristic. However, an employee dismissed for not covering up a tattoo could potentially bring an unfair dismissal claim, provided they had at least two years’ service. Such a dismissal should be fair, however, provided there was a clear ‘no visible tattoo policy’ and a fair disciplinary process was followed.

In practice

Employers wishing to prohibit or restrict visible tattoos should:

  • Have a dress code that makes clear what is and is not acceptable. Is there a zero tolerance approach or is there a distinction between customer-facing and back office roles? Are all visible tattoos banned or just those on the hands or face or which are discriminatory or offensive?
  • Think about the reason for banning tattoos. Having a clear reason based on business needs rather than managers’ personal preferences will help if required to justify recruitment or disciplinary decisions.
  • Bear in mind the discrimination risks and be prepared to be flexible if necessary.
Julie Keir is a professional support lawyer in the employment team at Brodies