What are the risks for employers when deciding on the suitability of tattoos in the workplace, particularly where stringent dress codes stray into judgments on social acceptability? Hannah Ford sets out the issues around “look policies”.
Despite warnings about books and covers, employers are increasingly alive to the fact that appearance matters. It is common for employers to demand that their employees project a specific image by imposing a dress code or “look policy” requiring employees to modify their appearance so as to meet business and societal norms.
Rules set out in such policies can range from the predictable “business attire only”, to the overly prescriptive “hair colour must match your natural skin tone” to the memorable “no thongs”, an unfortunate lost-in-translation reference to the Australian word for flip flops.
Tattoos in the workplace
Despite their rise in popularity, tattoos in the workplace remain a contentious topic. It is common for dress codes to require that tattoos are “non-visible”, particularly in the white-collar industry.
The Met Police recently hit the headlines for issuing a policy banning employees or staff from having “visible tattoos” and requiring them to register any other body art with their managers on the basis that they were perceived to damage its professional image. This may have been something of an own goal in terms of promoting workplace diversity.
Under UK law, workers have no standalone protection under discrimination legislation for having a tattoo. Under the Equality Act 2010 (Disability) Regulations 2010, tattoos and body piercings are expressly carved out of the definition of disability on the basis that they are not “severe disfigurements that are treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities”.
XpertHR dress code resources
XpertHR dress codes survey 2011: defining acceptable work wear
Although this would suggest that employers have free reign to discriminate, they should tread carefully. With statistics suggesting that less than 5% of over 65s have a tattoo, issuing a blanket policy forbidding tattoos in the workplace may unwittingly highlight generational prejudice.
If reliable statistics could be unearthed to support a disadvantage to a particular age group, one could envisage an imaginative young worker shoehorning a claim into the age discrimination framework on the basis that such a policy was indirectly ageist. It may of course be possible for an employer to successfully objectively justify such treatment, for example on the grounds of promoting a professional or corporate image; however, these are untested waters.
Employees who sport piercings or tattoos in the workplace as a manifestation of their religion or belief, such as David Beckham’s image of Christ or a Hindu employee who chose to pierce their nose, may separately seek to construct a claim for discrimination on the grounds of religion or belief if they were forced to cover up their body art or piercing, or were refused a job or dismissed on account of it.
Some temporary forms of body art such as henna may also attract protection under the race or religion or belief discrimination framework. In cases where a piercing or stretching is simply a matter of personal expression though, unconnected with a prohibited ground of discrimination, an employee has no legal protection save for where the employee has built up unfair dismissal rights through length of service.
Hair and HR
Hair length, style and colour can be a further hotbed of contention. Many dress policies demand that employees are well groomed, clean shaven or stipulate rules regarding moustaches, sideburns or beard length.
Again, employers should be alive to cultural or religious differences or face exposure to a claim for discrimination on grounds of religious belief or race. For example, a bearded Sikh employee who was unable to comply with a blanket “no beard” policy issued for business-image reasons only, would have grounds for a claim if he were dismissed or subjected to a detriment as a result.
In the case of Smith v Safeway [1996] IRLR 457 (CA) a male employee working on the Safeway delicatessen counter was dismissed on the basis that his pony tail contravened Safeway’s dress code, which required: “Tidy hair not below shirt collar length. No unconventional hair styles or colouring.”
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Smith pursued a claim for sex discrimination, arguing that female employees were subject to a different and less stringent standard than male employees. He lost. The Employment Appeal Tribunal accepted that Safeway had applied different rules to its male and female staff but determined that Smith was not treated less favourably than a female employee since the policy applied a standard of what was conventional for the sexes.
Notwithstanding the legal risks of imposing a stringent dress code when balancing the tension between individualism and corporate image, employers should consider the wider benefit of attracting and representing, or being seen to attract and represent, a socially diverse workforce that embraces freedom of expression.
