Can I refuse to hire someone because of their tattoos or body piercings?

Tattoos and body piercings can be a grey area with mixed opinions and attitudes. However, are employers allowed to judge an individual based on their tattoos and body piercings, or could that be seen as discrimination?

A recent UK study carried out by YouGov revealed that a quarter (26%) of the British population have tattoos and one in nine (11%) of this group have tattoos that are visible; either on their head, face, neck, forearms, wrists, or hands. There is some indications that attitudes towards visible tattoos in the workplace are shifting, with some sectors taking a more relaxed approach. For example, earlier this year Virgin Atlantic became the first UK airline to announce they will allow cabin crew to display tattoos.

The Equality Act 2010

The Equality Act 2010 does not specifically protect people who have tattoos or piercings. Therefore, employers can refuse to employ an individual based on their body art or piercings and can require employees to cover up tattoos or remove piercings while working.

However, in some cases tattoos or piercings may be related to a protected characteristic, such as when they are connected to an employee’s culture or religion. Where this is the case, refusing to employ a person because of their tattoos may constitute discrimination on the grounds of religion or belief.

Dress Code Policies

Employers do have discretion when it comes to controlling their image as a business, which includes the appearance of their staff. In a previous case (Boychuk v Symons Holdings LTD), the Employment Appeal Tribunal made it clear that when it comes to dress codes there should be a balance between the interests of the employer and reasonable freedom of the employee.

A company’s dress code should provide a framework for staff to understand what is expected of them and their appearance at work. The dress code should include the employer’s stance on visible tattoos and piercings, why any restrictions have been imposed and that the restrictions must be enforced fairly. For example, enforcing a ban on tattoos more strictly against your female staff than you do your male staff may lead to a sex discrimination claim.

If the employer does allow tattoos to be visible, they may still place restrictions on the type of tattoos that can be displayed, such as that they are not offensive or carry any offensive meanings. It is important to ensure all staff are aware of the standard expected of them and the repercussions if they do not comply with the policy, specifically the disciplinary procedures that may take affect.

Unfair Dismissal

In the event that an existing employee arrives at work with visible tattoos or piercings in violation of the dress code, an employer will need to proceed cautiously. The employer should remind the employee of the dress code and request that the employee take steps to cover up the tattoo or remove the inappropriate piercing. If an employee refuses to comply the employer may then need to take disciplinary action.

Employees with over two years service are protected from unfair dismissal so if the employer wishes to fairly dismiss them, they will need to rely on one of the five potential fair reasons for dismissal and follow a fair procedure.

The five potential fair reasons are as follows:

• Conduct/misconduct;
• Capability/performance;
• Redundancy;
• Statutory illegality or breach of a statutory restriction; or
• Some other substantial reason.

In this instance, the most relevant options would be conduct/misconduct or some other substantial reason. However, before reaching this decision, it is important for employers to ensure they give the employee an opportunity to state their reasons for having the tattoo, reaching a reasonable decision on the evidence and giving them the opportunity to appeal.

Previous cases of this nature have suggested that tribunals may take a tough stance on what is reasonable in this context and are perceptive to prejudice and 'excessive fussiness' on the part of employers.

Strict Rules

Employers should be cautious about imposing strict rules or bans on visible tattoos. People choose to ink their bodies for different reasons. Some tattoo themselves to mark a significant experience or struggle, or use their tattoos to express themselves. Imposing exceedingly strict rules may conflict with a company’s diversity and inclusion message, especially where the employer encourages staff to feel comfortable at work and be themselves. Strict rules and bans may alienate existing staff and also deter good candidates from applying to vacancies if they feel they would be affected by the restrictions.

In summary:

1. Although employees with tattoos and body piercings themselves are not protected under the Equality Act 2010, an employees reasons for having those tattoos or piercings may be connected to a Protected Characteristic.
2. Dress Code policies should be clear on the company’s views on tattoos and piercings as well as set out the repercussions of non-compliance.
3. Strict rules could alienate existing staff and deter good candidates if the tattoos have significant meaning to the individual.