Although tattoos are becoming increasingly popular, the media is full of reports of individuals who have been denied employment or dismissed as a result of getting a tattoo, and many organisations maintain anti-tattoo policies.
The Equality Act 2010 prohibits discrimination in respect of the following ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.
There are several types of discrimination prohibited by the act which apply to most, if not all, of the protected characteristics, which include: direct discrimination, indirect discrimination, harassment and victimisation.
In fact, the act includes specific provisions regarding the recruitment process by prohibiting an employer from discriminating against or victimising a person:
■ in the arrangements the employer makes for deciding to whom to offer employment; or
■ as to the terms on which the employer offers a person employment; or
■ by not offering the individual employment.
The act also prohibits an employer from harassing a person who has applied to the employer for employment.
“Arrangements” is a broad term, which includes all of the steps an employer takes to decide whom to offer employment to. These steps could include: the content of application forms; the location, and timing of interviews or the job role specification.
Tattoos
Tattoos are not a specific protected characteristic, nor are other body modifications such as non-medical piercings or the wearing of jewellery. Tattoos are in fact expressly excluded from the definition of ‘disability’. Many employers, especially in areas such as the restaurant and bar sector where the majority of employees are customer facing, have concerns about protecting their brand and image.
The way that employees present themselves inevitably reflects an employer’s brand; and if employees do not look smart and presentable this could, of course, damage the employer’s brand and discourage customers. As a result of concerns, some employers have created policies for tattoos. For example, in 2012 it was reported that HMV had issued new company guidelines asking employees to cover up tattoos.
When it comes to physical appearance, employers can have difficult decisions to make in order to create and maintain the image of their brands, while ensuring there is no risk of discrimination against their employees or potential employees. If an employer wishes to implement rules about tattoos then it should record these views in a clear policy, which should be made available to all employees.
Employers should consider what restrictions they wish to place on tattoos and ensure that they can objectively justify the reasons for these rules. Before implementing such a policy an employer should consider its current workforce and any employee who may fall foul of the new rules. If the employer has a recognised trade union or workforce representatives, they should be consulted on the policy.
Discrimination
In addition to anti-discrimination law, employees with two years or more continuous service have legal protection against being unfairly dismissed. Putting to one side any discrimination issues, if an employer were seeking to discipline or dismiss an employee for having a tattoo, it must have a clear, justifiable policy, which is linked to disciplinary procedure.
ACAS guidance suggests that, if organisations have a policy on issues such as tattoos or wearing of jewellery, they should try to be flexible and reasonable concerning jewellery and markings which are traditional within some religions or beliefs. Unjustifiable policies and rules may constitute indirect discrimination against those who have tattoos due to their religion or beliefs.
The ACAS guidance gives the example that many Hindu women wear a necklace (Mangal Sutra) which is placed around their neck during the wedding ceremony and is therefore highly symbolic. Some may find it distressing if they are not allowed to wear it in their place of work, unless the rule was for health and safety or other justifiable reasons.
A fair recruitment process
To ensure a fair recruitment process and avoid claims of discrimination, employers should conduct the recruitment process in a way that is objective, justified and not directly or indirectly discriminatory to any protected group. Here are some tips on conducting a fair recruitment process:
■ Have an equal opportunities policy that staff involved in recruitment have regular training on to ensure it is followed during the recruitment process.
■ Check that all requirements of a job description and person specification can be objectively justified in relation to the job in question and do not indirectly discriminate against any groups of employees. Include any policy regarding tattoos as part of the person specification.
■ Decide whether the job needs to be full time or could be part time, involve home working or flexible working. If the job is full time, make sure that there is objective justification for this requirement.
Discrimination law is constantly evolving. We have seen a belief in the sanctity of life, extending to being anti-fox hunting, held as a philosophical belief. We have
also seen a belief in the higher purpose of public sector broadcasting upheld by a tribunal. Until the past few years, such protections would have been unthinkable.
Time will tell whether the same protection is afforded to tattoos. What is clear is that if employers wish to adopt a stance against tattoos, they must think very carefully before they do.
The authors are Will Nash, senior associate, and Katie Ellis, associate, at law firm Charles Russell.