Nicola Cockerill explores some of the issues involving employees with body art.
Before addressing the issue of tattoos in the workplace and whether employers have the right to ask employees to cover up, or even refuse to employ or dismiss employees with visible tattoos, it is worth considering the popularity of tattoos in general.
Equally, a range of attitudes towards tattoos in specific sectors of employment, bring different perspectives to the issue.
Are tattoos growing in popularity and acceptability?
The latest available figures dealing with the popularity of tattoos in the UK date from 2015, when findings published by Statista revealed that 30 per cent of 25 to 39-year-olds have at least one tattoo, a figure that dropped to 21 per cent for the 40-59 age group and 9 per cent for those aged over 60.
As well as discovering that the vast majority of people choosing to tattoo their bodies were perfectly happy with their decision later in life, a YouGov survey looked at the attitudes people have towards those with tattoos.
Highly pertinent when considering the acceptability or otherwise of tattoos in a workplace, the survey asked whether people thought less or more positively of people with tattoos.
Interestingly, the findings revealed 36 per cent thought less positively of tattooed people and three per cent more positively, although most noticeable was probably the fact that 44 per cent of respondents said that seeing a large tattoo on another person would make no difference to how they thought of them.
Perhaps the most useful figures in terms of attitudes toward tattoos in the workplace were those collated by The Knowledge Academy in December 2019, which dealt with the question of whether tattoos in the workplace are becoming normalised.
Asking a sample of 1,265 people the question ‘Do you prefer employees with a tattoo in the following professions?’, which ranged from hairdresser to MP. The findings highlighted the significant degree to which the acceptability or otherwise of a tattoo in the workplace seems to depend on the context and the nature of the work being done.
Generally, the average number of respondents actively preferring employees to have a tattoo sat at 21 per cent, but for a fashion designer, for example, the positive figure rose as high as 65 per cent, with a similarly high score of 43 per cent for beauty industry careers.
For most professions included in the survey, the answer ‘don’t mind’ was proffered by the majority of those asked. The exceptions included MPs (75 per cent preferring employees without tattoos), lawyers (63 per cent) and doctors (68 per cent).
This last figure is particularly useful when considering the question of tattoos on employees in a dental practice. It helps underline that while acceptance of tattoos has doubtless increased hugely, this tolerance may be tested when a patient comes across a tattooed employee in a medical setting.
What can an employer do about tattooed employees?
Against this backdrop, employers must consider the question of whether they are legally entitled to ask employees to cover their tattoos, if they feel they are inappropriate.
Leaving aside the legal question for a second, ACAS published a report as long ago as 2016 which, at the same time as updating their guidance on dress codes, warned that an overly negative attitude toward tattoos, might lead to employers missing out on talented employees.
Police forces across the UK have different rules but have traditionally been very strict on their policies regarding visible tattoos. However, reflecting the ACAS advice, the Metropolitan Police relaxed its rules in 2018, hoping to attract more recruits.
Currently, recruits have their visible tattoos reviewed on a case-by-case basis, rather than being automatically rejected, although facial tattoos still remain banned.
In certain settings, of course, the fairly obvious possibility of missing talented employees has to be weighed against the perceived general attitude toward the presence of visible tattoos – which is to say tattoos above the neck or below the elbows.
In legal terms, there are currently no specific employment laws that deal with the issue of tattoos – whether visible or otherwise. As such, an employer may be within their rights to reject a prospective employee for a role, on the basis of them having a visible tattoo.
It is advisable for an employer to have a dress code policy in place, which clearly sets out the expected standards with regard to tattoos and, where employees may be asked to cover up visible tattoos, to explain the business rationale for doing so.
The employer could argue, for example, that the presence of visible tattoos would have a detrimental impact on their business and, in the case of a dental surgery, that it could create a less than positive impression in the minds of any prospective patients.
The same principles apply to dismissing an employee who obtains a tattoo while in employment.
Whilst tattoos and body art do not in themselves constitute a protected characteristic for the purposes of UK law, if the tattoo or body art has a meaning which relates to one of the protected characteristics (for example a religious connotation), then there could be an argument that someone treated less favourably due to the tattoo has been discriminated against on grounds of religion.
In addition, if the employee has worked for an employer for more than two years, there may be grounds for them to bring a claim for unfair dismissal.
Whilst a dress code policy dealing with the issue of tattoos and body art will help employees understand the standards expected of them, and will help protect a business against such claims, it is important that the policy is applied in a fair and consistent manner.
Consideration should also be given on a case-by-case basis to individual circumstances to minimise the risk of discriminating against employees.
If, for example, an employer dismisses a female employee with a visible tattoo but not a male employee with a visible tattoo, this could leave the employer open to a claim of discrimination on the grounds of sex.
The gradual evolution of societal attitudes toward tattoos, particularly if it can’t be argued that the nature of a tattoo is inherently offensive, means that this is an area in which the law may be relatively simple but the practical application of that law needs to be careful and considered.
Whether a tattoo is deemed offensive or not can be hugely subjective. Occult symbols may be deeply offensive to a devout Christian employer, but less so to the customers of a coffee shop.
Employers need to ask themselves whether the prohibition of visible tattoos reflects genuine business requirements rather than their personal taste, and to reflect those business requirements in a formal dress code to help protect against any claims of unfair treatment.
If there is no dress code in place, then one should be introduced, based on the best interests of the business. It should include information about what employees can and cannot wear and their overall appearance at work, which could encompass things like finger or hand tattoos in the workplace.
It is important to ensure employees read and sign this written policy, which should then be applied consistently, to prevent employees claiming discriminatory action.