How much discretion do employers have with policies regarding their staff’s appearance? Nick Jones and Matthew Hobbs look at the law.
Given that the oldest examples date back nearly 6000 years, and with speculation that the practice has been around for considerably longer, it is probably a surprise that there are still issues relating to tattooing. When the wife of the Prime Minister 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 and tattoos and employment continue to cause issues for employers and employees alike.
In an age of marketing and brand recognition, it is probably 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 customer-facing staff, the commonly accepted logic being that a customer or client will make certain inferences regarding the company from the appearance of its representatives.
Employers’ discretion
Under UK law there is little restriction on an employer’s dress code and appearance policy, unless it offends the provisions of the Equality Act 2010, by way of discrimination, or harassment.
Discrimination is only classed for the purposes of the Act if it is based on a ‘protected characteristic’, which covers age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Discrimination can be either direct or indirect. Direct discrimination arises when an employee is treated less favourably. Indirect discrimination occurs where a ‘provision, criterion or practice’ 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 is a policy that only allows for full-time working hours. Given that women are more likely to have childcare 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 across all employees, or at least across all employees of a similar position or role, such policies will not be directly discriminatory.
Potential ground for conflict to an exclusive policy on tattooing and piercing comes via the protected characteristic 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 classify it must be genuinely held, must be a belief and not an opinion or viewpoint, must be a weighty and substantial aspect of human life and behaviour, must attain a certain level of seriousness, cohesion and importance, and it must be worthy of respect in a democratic society.
The argument could also be raised that as a group, young people are more likely to be ‘inked’, therefore, any anti-tattoo policy could be discriminatory based on age. But, with tattoos growing in popularity amongst the older generation also, how long this may be relevant is debatable.
Even if indirect discrimination is proved, this does not necessarily mean that the law will intervene. Indirect discrimination is capable of being ‘objectively justified’, if the policy in place is to address a legitimate aim and is proportionate to achieving that aim.
In Eweida v British Airways, a case involving a Christian employee 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 disagreed citing Article 9’s right to freedom of thought, conscience and religion, the ECHR held that the policy could not be objectively justified – the crucifix was discrete and there was no evidence to support the view that wearing it could adversely affect public opinion of BA. However, in other cases, 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 proportionate to that aim, the policy will be enforceable, even if it is initially held to be indirectly discriminatory.
Tattoo rules
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 its comments are not prescriptive, they encourage employers to strongly 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.
If an employer has a strict policy regarding tattoos and piercings, this is likely to obstruct certain people to employment, with little protection afforded under the current discrimination legislation. What then, of the employer who seeks to introduce a new, more stringent policy on tattoos and piercings, or an employee who intentionally contravenes an existing policy? This strays into the area of dismissal, and whether such a dismissal is ‘fair’.
The Employment Rights Act 1996 sets out five specific grounds for dismissal that may be considered to be fair. Issues of conduct can include the refusal of a lawful request, such as requesting covering any visible tattoos or piercings. In the case of a tattoo policy it is likely an Employment Tribunal will include consideration of whether the policy itself is reasonable. Similar rationale to the discrimination legislation is likely to be used – does the policy address a legitimate business need, and if so, is the effect proportionate to the outcome it wishes to achieve?
It is clear that employers do have a considerable level of discretion in their tattoo and piercing policies, and it is wise to have such policies in an accessible written format and to ensure any changes in policy are reasonable and communicated effectively to employees, but the grounds for challenging such policies are limited under current legislation. 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.
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