Fiona McAnaw and Kristie Willis: Tattoo discrimination

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Many employers are now faced with a dilemma over the stance they should take regarding visible tattoos. With a reported one in five Britons now having tattoos, claims of discrimination against those exhibiting body art are increasingly reported in the news.

The recent case of trainee teacher Charlotte Tumilty, who was sent away from a Catholic School because her arms and neck were covered in tattoos, has brought the issue once again into the spotlight.

Many employers view visible tattoos negatively, especially if they depict images of death or connections to drugs or gangs.

This is a controversial issue as whilst body art once marked an individual as a rebel, it is increasingly considered normal and acceptable, particularly amongst the younger generation. Celebrities, footballers and even Samantha Cameron have brought tattoos into the mainstream. However, there is currently no protection under UK discrimination law for those who are dismissed or refused employment on the grounds of their body art.

The clear difficulty in this matter is balancing the rights of individuals to modify their appearance as they wish and the requirements of employers to portray a professional image.

In a recent press release the British Sociological Association reported the findings of research conducted by Dr Andrew Timming into the attitudes of hirers towards job applicants with visible tattoos. It was found that managers regularly expressed negative views about the image projected by staff with noticeable tattoos. The managers who took part in the research expressed concern that employees with visible tattoos may be perceived as “abhorrent”, “repugnant”, “unsavoury” and “untidy” by customers.

This report did also highlight, however, that in certain industries tattoos may be a desirable characteristic in a job interview. For example, it was noted that in a prison tattoos can help guards make a connection with prisoners.

Many large employers have strict policies in respect of tattoos. Surrey Police introduced a new policy in August 2013 which provided that all tattoos should be covered with clothing, make up or flesh coloured plasters. Mrs Owens the Chief Constable of Surrey Police said: “I firmly believe that our ability to deliver a first-rate standard of service to the public and be seen as a reassuring, authoritative presence is inextricably linked to our standard of dress”.

Whilst there is currently no anti-discrimination legislation specifically designed to protect employees with body art, employers should be aware that they could still face employment tribunal claims if they dismiss employees on the grounds of their tattoos.

If an employee is dismissed after two years’ service, they may have a claim for unfair dismissal, unless the employer can justify the dismissal and demonstrate that it was fair and reasonable in the circumstances.

Before taking any action to dismiss an employee or decline them employment, employers should also consider whether an employee’s tattoo is linked to their race or religion. For instance, in certain forms of Hinduism, tattoos and body piercings are required. It would therefore be advisable for employers to consider the necessity of any dress code which imposes a blanket ban on body art. The employer would need to show that the provision is a proportionate means of achieving a legitimate aim in order to defend any claim for indirect discrimination.

Whilst tattoos and body piercings are specifically excluded from being classified as a disability under the Equality Act 2010, what if the employee is using a tattoo to disguise a disfigurement? A severe disfigurement can constitute a disability for the purposes of the Equality Act. It is not inconceivable that employers could be faced with a claim for discrimination if they treat a job applicant or employee less favourably because they have a tattoo; if for instance, its purpose is to conceal severe scarring.

It is always advisable to make sure that internal policies and procedures relating to appearance are professionally drafted and allow for religious and cultural differences.

Where employers seek to introduce new policies which prohibit visible tattoos, it is important to consider the effect that this will have on current employees who may be unable or unwilling to comply with the new rules. In particular, employer’s should consider whether any policy imposing a blanket ban truly reflects its business objectives, if for example, only a small number of their employees actually have client facing roles.

There have been several e-petitions on the government website seeking to outlaw discrimination in the workplace on the basis of tattoos and body piercings. At present there are no proposed reforms to prohibit this form of discrimination. However, it seems likely that as body art becomes ever more conventional, discrimination legislation will need to keep pace and reflect changing social attitudes.

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