LEGAL
Tattoos and piercings – are they
compatible with the workplace?
The raceaway popularity of tattoos and piercings has left legislation struggling to
keep up. But while much depends on discretion and individual cases, argue
Nick Jones and Matthew Hobbs, having a clearly communicated policy is crucial
G
iven that the oldest examples date back nearly
6 000 years, and with speculation that the prac-
tice has been around for considerably longer, it is
probably a surprise that any issue relating to tat-
tooing hasn’t yet been resolved. When the wife of the Prime
Minister, Samantha Cameron, has her own piece of visible,
permanent body art, surely it’s time to put any debate to rest?
Interestingly, while tattoos have surged in popularity in
recent years, the legal position hasn’t quite caught up with
public opinion on the subject. Tattoos and employment
continue to cause issues for employers and employees alike.
In an age of marketing and brand recognition, it is prob-
ably unsurprising that most businesses will seek to retain
a level of control over their public image. This includes the
presentation and appearance of their frontline or resident-
facing staff. The commonly accepted logic is that a resident
or their family, and indeed other members of the public,
will make certain inferences regarding the home from the
appearance of its representatives.
A matter of discretion?
So, what is the scope of a home’s discretion in this mat-
ter? The answer is surprisingly wide. Under UK law, there
is little restriction on an employer’s dress code and appear-
ance policy, unless it offends the provisions of the Equality
Act 2010, by way of discrimination or harassment. Each
of these terms has a specific meaning, dictated by the Act.
Discrimination is only classed as such for the purposes of
the Act if it is based on a ‘protected characteristic’. The pro-
tected characteristics covered are age, disability, gender re-
assignment, marriage and civil partnership, pregnancy and
maternity, race, religion or belief, sex and sexual orientation.
Discrimination, direct and indirect
Discrimination can be either direct or indirect. Direct
discrimination arises when an employee is treated less
© 2015 MA Healthcare Ltd
favourably as a result of a protected characteristic. Indirect
discrimination occurs where a ‘provision, criterion or prac-
tice’ of the employer is applied equally to all employees, but
has the effect of causing less favourable treatment to those
with the protected characteristic. An example of indirect
NRC | February 2015, vol 17, no 2
discrimination is a policy that only allows for full-time
working hours. Given that women are more likely than
men to have child-care responsibilities and therefore to
work part-time, this can be seen as being discriminatory
on the basis of sex.
As any policy on tattooing or piercing is likely to
be applied universally to all employees, or at least to
all employees of a similar position or role, such policies
will not be directly discriminatory. Indirect discrimi-
nation, however, may arguably arise in certain,
limited circumstances.
One of the few protected characteristics that can relate to
physical appearance is that of disability. ‘Disfigurement’ is
recognised as a potential disability. However, part 2 section 5
of the Equality Act (Disability) Regulations 2010 expressly
excludes both tattoos and piercings from this protection, re-
gardless of how prominent or offensive they may be.
Religion and belief: do Jedi knights count?
A potential ground of challenge to an exclusive policy
on tattooing and piercing comes via the protected char-
acteristic of religion or belief. If a tattoo, or a piercing,
forms an integral part of a person’s religion or belief, the
argument could be made that any blanket ban would be
indirectly discriminatory.
However, the bar is high and there are a few hurdles to
overcome. Previously decided cases have established that
to be classified as a ‘belief ’, it must be genuinely held; must
be a belief and not an opinion or viewpoint; must be a be-
lief as to a weighty and substantial aspect of human life
and behaviour; must attain a certain level of seriousness,
Nick Jones is a partner and
Matthew Hobbs is a trainee
solicitor, in the employment law
group of Lyons Davidson
103
LEGAL
Key points
The legal position on ‘body art’ is out of step with public opinion
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Under UK law, there is little restriction on an employer’s dress code and
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appearance policy unless it’s discriminatory
Employees could claim protection because of a religion or belief, but this
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is a high bar to meet
Homes may be able to enforce restrictions more rigidly because of the
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nursing environment in which they operate
Employees could be dismissed for failing to follow a request to cover up
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their body art
Acas offers guidance on these issues
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cohesion and importance; and must be worthy of respect in
a democratic society.
So, while it could be argued that a tattoo of a light-sabre
is an expression of the ‘Jedi’ religion (as featured in the Star
Wars films), this is unlikely to pass the test of seriousness,
cohesion and importance to afford the protection of the Act.
The argument could also be raised that, as a group,
young people are more likely to be ‘inked’—that is, tat-
tooed—so any anti-tattoo policy could be discriminatory
based on age. But, with tattoos growing in popularity
among the older generation too, how long this argument
could be made is debatable.
The crucifix case: Eweida v British Airways
It is important to note that, even if indirect discrimination
is proven, this does not necessarily mean that the law will
intervene. Indirect discrimination is capable of being ‘ob-
jectively justified’ if the policy is in place to address a ‘le-
gitimate aim’ and is proportionate to achieving that aim.
In Eweida v British Airways (BA), a case involving a
Christian employee (Ms Eweida) wearing a crucifix at
work, the Court of Appeal held that BA’s policy, which
sought the consistent appearance of its customer-facing
staff, was a proportionate response to a legitimate aim.
The European Court of Human Rights (ECHR) disa-
greed. Considering the matter on the basis of Ms Eweida’s
article 9 right to freedom of thought, conscience and reli-
gion, the ECHR held that the policy could not be objectively
justified—the crucifix was discreet and there was no evi-
dence to support the view that wearing it could adversely
affect public opinion of BA.
However, in other cases, such as one involving the right
to wear a full-face veil in a teaching role (Azmi v Kirklees
Metropolitan Borough Council), or another concerning the
right to wear a crucifix while practising as a nurse (Chap-
lin v Royal Devon and Exeter NHS Foundation), restrictions
have been held to be enforceable. Therefore, if an employer
can show a legitimate reason for a policy regarding tattoos
and piercings, and the restrictions imposed are proportion-
ate to that aim, the policy will be enforceable, even if it is
initially held to be indirectly discriminatory.
104
Acas guidance
The Advisory, Conciliation and Arbitration Service (Acas),
the publicly-funded non-government organisation set up
to assist in resolving employment disputes, has recently
provided updated guidance on dress code policies, which
includes consideration of tattooing and piercing.
While their comments are not prescriptive, they do
encourage employers strongly to consider the reasons
behind any dress code and to have such policies written
down and clearly communicated to all staff. Emphasis is
placed on policies being reasonable and proportionate.
So, if a home has a strict policy regarding tattoos and
piercings, this is likely to be a bar to employment for cer-
tain individuals, with little protection afforded under the
current discrimination legislation.
What, then, of the home that seeks to introduce a new,
more stringent policy on tattoos and piercings? Or an em-
ployee who intentionally contravenes an existing policy?
This strays into the area of dismissal, and whether such a
dismissal is ‘fair’.
When is dismissal fair?
The Employment Rights Act 1996 sets out five specific
grounds for dismissal that may be considered to be fair. One
of these is conduct.
Issues of conduct can include the refusal of a lawful
request, such as the request to cover any visible tattoos
or piercings. In deciding such a claim, the Employment
Tribunal would consider whether the lawful request was
reasonable. In the case of a tattoo policy, it is likely that
this will include consideration of whether the policy it-
self is reasonable. A similar rationale to the discrimina-
tion legislation is likely to be used—i.e. does the policy
address a legitimate business need and, if so, is the effect
proportionate to the outcome it wishes to achieve?
While the law in England and Wales is not likely
to tolerate actions such as those reported from Osa-
ka, Japan—where, in 2012, government employees
were inspected for existing tattoos and prohibited from
obtaining any more, regardless of where on the body
they were—it is clear that employers do have a consid-
erable level of discretion in their tattoo and piercing
policies. It is wise to have such policies in a written
and accessible format, and to ensure any changes
in policy are reasonable and communicated effectively
to employees.
Conclusion: the new normal?
The grounds for challenging policies on tattoos and
piercings are limited under current legislation. Whether
this remains the case in the future is yet to be seen. It is
© 2015 MA Healthcare Ltd
unlikely that your local bank manager will be adorned
with a Mike Tyson-style facial design any time soon. But
tattoos arguably enjoy wider public acceptance now
than at any other point in history, and it may only be a
matter of time before the law catches up. NRC
NRC | February 2015, vol 17, no 2
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