A frequently Googled question is: "can my employer dismiss me for having a tattoo?" This insight looks at the surprisingly thorny issue of tattoos in the workplace.
A recent YouGov poll found that 1 in 3 people in the UK have a tattoo, 13% of which are visible. So, it's not inaccurate to say that, as a society, we've become more accepting of tattoos. But, does that same acceptance extend to all workplaces?
A company's stance on tattoos is usually set out in their dress code and, whether or not they are acceptable, is determined entirely by the employer. Some organisations such as Met Police and Virgin Airlines have relaxed their dress codes recently permitting their employees to showcase their body art. Virgin Airlines has even included it in their latest advert.
So, can you be dismissed for having a tattoo? Well, it depends.
Assume you're an employee at a major telecom firm. You've been its top-performing salesperson for the last 3 years and recently closed on a £1million deal and you mark the occasion by getting a tattoo. You know your employer has a zero-tolerance policy on visible tattoos but yours will be easily concealable so you get it. Unfortunately, the next day, your manager notices it and summarily dismisses you for gross misconduct. Does that amount to an unfair dismissal?
Most likely, yes. While, the employer may justify their decision to dismiss as being a "some other substantial reason" (SOSR) dismissal, for that to be effective they will need to demonstrate that: (1) the SOSR relied oncouldjustify dismissal and (2) the decision to dismiss was reasonable in all the circumstances. In this scenario, that is likely to be difficult.
Of course, the outcome may be different if you've been gently reminded about the company's dress code policy numerous times and each time you flagrantly disregarded it. If it escalates to a disciplinary process and you still refuse to cooperate which then leads to your dismissal, then, perhaps, the decision to do so was fair. Most of the time, I suspect an Employment Tribunal will simply say: "if you don't like the company and/or it's rules and those rules are made very clear then leave".
While succeeding on an unfair dismissal claim may be challenging, the same might not be true of discrimination claims brought on the same basis. To be clear, the Equality Act 2010 does not treat tattoos as a protected characteristic, but it does treat religion and philosophical beliefs as such.
Now assume, you're the hiring manager of the same Telecom firm. Your top salesperson has been poached and you need to fill the vacancy. In your shortlist are the most suitable candidates but:
- the first is of Māori descent who proudly wears tribal tattoos on their face;
- the second is Hindu who expresses their religion by applying Henna to their hands; and
- the third is a Devil worshipper who, although completely concealed, has covered their body in Satanic tattoos and the only reason you know any of this is because they told you.
Despite obviously being qualified and competent, you reject them all and each believes that your decision to do so was an act of discrimination on the grounds of religion and philosophical beliefs.
The Equality Act 2010 states that discrimination occurs when a person is treated less favourably for possessing a certain protected characteristic when compared to others who do not. In this particular case, the employer will need to show that the decision to reject was based on the fact they had tattoos; not because it was religiously motivated.
Depending on the nature of the employer, it might be acceptable for an employer not to want to employ a tattooed person without a case for discrimination being made out. Yet, in the Devil worshipper's case, the only possible reason why they were rejected was because of their religion. Yes, their tattoos would most likely be regarded as offensive but you can't be offended by what you can't see. So, would an Employment Tribunal consider the decision to reject discriminatory? Possibly, yes although not surprisingly this has not been tested.
The subject of tattoos being present in the workplace may seem a small issue but adopting such antiquated attitudes may lead to businesses losing out on top talent.
We simply ought not to prejudge a person's competency, knowledge, innovation, and talent if they happen to have a tattoo as it has no bearing on any part of their intellectuality. However, there can be exceptions to that depending on whether this might affect customers'/clients' attitudes to the business as a whole as well as the extent of the tattoos in place and where they are on the body.
In this day and age, I think any reasonable person would not deem tattoos in the workplace to be a divisive generational issue. Yet, most company's dress code policies still hang onto outdated views. When was the last time you looked at a company's dress code? Do you know if your company even has one?
While it is completely fair to nuture and grow a company's brand image and reputation, it should be done in a way that is not completely out-of-touch with the modern world and is proportionate. The key to survival is adaptivity. Consider the current rise in home-working, when on Teams or Zoom you only see the top half of person. So, what does it matter if they have a tattoo or not? As I said, you can't be offended by want you can't see. However, to take it to another extreme - if you simply say in your dress code that all tattoos and piercings are acceptable, this is likely to lead to some issues arising - the parameters should therefore be addressed in an updated dress code.
I recommend that employers and HR teams regularly evaluate, not only their dress code, but all their policies as a whole since they should be in keeping not only with new legislation but with current attitudes. You may identify areas that are in dire need for a revamp both in terms of legal compliance and best practice. SMB's employment team has its finger on the pulse with such issues and I encourage you to reach out to us should you require our services.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.