A colleague recently asked me about tattoos in the workplace and I see that a special edition of the popular Tattoo Fixers will be coming to our screens this week in support of Cancer Research UK’s excellent Stand Up For Cancer campaign.  Only last month ACAS published research which shows that employers risk losing talented young employees due to concerns about employing people with visible tattoos. Tattooing is a subject that seems to divide and unite society in equal measures, but what is the legal position in the workplace?

It should be noted that tattoos (and piercings for that matter) are rarely an issue at work.  They may be hidden from colleagues but even if they are not, tattoos raise few eyebrows in many industries and may even be welcomed.  But the fact remains that some employers do take issue and some employees may be concerned about the impact which their tattoos may have on their employment prospects.

Many companies ask their staff to comply with a dress code.  Such codes are commonplace and help businesses present a certain image to their customers or meet health and safety standards. A policy may require employees to cover up visible tattoos or remove or cover piercings.  However, managers should be flexible and it is best to balance the legitimate needs of the business with those of the employee before any decision is made.

For example, do you risk damaging the relationship with your workforce in return for no discernible benefit to the business? Is there a religious or cultural reason for the tattoo?  If so, insisting on its removal or covering may fall foul of religious or race discrimination law.  The case law in this area is complex but tends to cover the wearing of crucifixes or certain clothing at work rather than tattoos.  In my own work I have not come across any cases in which an employee has sought protection from discrimination law because their tattoo is a requirement of their faith or culture – but I am sure that such a dispute could happen.

Even if a dress code on tattoos or piercings indirectly discriminates against employees of a particular faith, an employer may be able to defend a claim by showing that they have objective justification for the policy.  One of the most obvious examples is a ban on piercings for those who work in certain areas of medical treatment, as they could endanger the health of their patients.

Could disability discrimination law play a part? Tattoos and piercings do not amount to disabilities in themselves.  The Equality Act 2010 deems that severe disfigurements are automatically protected disabilities, but unremoved tattoos and piercings are specifically excluded.  In other words, an employee would not be able to claim disability discrimination if they were refused a job or dismissed simply because of their tattoos.  That said, employers are under a duty to make reasonable adjustments in relation to employer who do have disabilities.  Sometimes this can mean relaxing a dress code for disabled employees.

The position may be different when an employee has been with the business for more than two years.  After this milestone the individual has the statutory protection against unfair dismissal.  This means that an employer cannot dismiss lawfully without identifying a fair reason and following a fair procedure.  The discovery of a tattoo after two years of service is unlikely to justify a fair dismissal on its own.

Even if there is no legal protection afforded to a tattooed employee or candidate, businesses should still avoid making decisions based on appearance.  The ACAS research states that almost 1 in 3 young people have tattoos so employers risk avoiding a third of the talent pool if tattoos are a no go.  As with all aspects of an individual’s appearance or background, managers can often fall victim to affinity bias.