How much say do employers have when it comes to employees and visible tattoos? Nick Jones and Matthew Hobbs investigate

In an age of brand recognition, it is probably unsurprising that most businesses – including community pharmacies – will seek to retain a level of control over their public image. Under UK law there is little restriction on an employer’s dress code and appearance policy, unless it offends the provisions of the Equality Act 2010, by way of discrimination or harassment. Discrimination is only classed as such for the purposes of the Act if it is based on a “protected characteristic”. The protected characteristics covered are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Discrimination can be either direct or indirect. Direct discrimination arises when an employee is treated less favourably as a result of a protected characteristic. Indirect discrimination occurs where a “provision, criterion or practice” of the employer is applied equally to all employees, but causes less favourable treatment to those with the protected characteristic.

Tattoo twist

As any policy on tattooing or piercing is likely to be applied universally across all employees, such policies will not be directly discriminatory. Indirect discrimination, however, may arguably arise in certain, limited circumstances. One of the few protected characteristics that can relate to physical appearance is that of disability. “Disfigurement” is recognised as a potential dis- ability; however Part 2 Section 5 of the Equality Act (Disability) Regulations 2010 expressly excludes both tattoos and piercings from this protection. A potential challenge to a policy comes via the protected characteristic of religion or belief. If a tattoo, or a piercing, forms an integral part of a person’s religion or belief, it could be argued that any blanket ban would be indirectly discriminatory. However, the bar is high and there are a few hurdles to overcome. Previous cases have established that to classify as a “belief” it must:

• Be a genuinely held belief and not an opinion or viewpoint

• Be a belief as to a weighty and substantial aspect of human life and behaviour

• Attain a certain level of seriousness, cohesion and importance

• Be worthy of respect in a democratic society.

It is important to note that even if indirect discrimination is proved, this does not necessarily mean that the law will intervene. Indirect discrimination is capable of being “objectively justified”, if the policy is in place to address a “legitimate aim” and is prop- ortionate to achieving that aim. In Eweida vs British Airways, a case involving a Christian employee wearing a crucifix at work, the Court of Appeal held that BA’s policy, which sought the consistent appearance of its customer-facing staff, was a proportionate response to a legitimate aim. The European Court of Human Rights disagreed. 

 

Considering the matter on the basis of Ms Eweida’s article 9 right to freedom of thought, conscience and religion, the ECHR held that the policy could not be justified – the crucifix was discrete and there was no evidence to support the view that wearing it could adversely affect public opinion of BA. However, in other cases, such as one involving the right to wear a full-face veil in a teaching role, or another concerning a nurse’s right to wear a crucifix, restrictions have been held to be enforceable.

Updated guidance

ACAS has provided updated guidance on dress code policies, which includes consideration of tattooing and piercing. It encourages employers to strongly consider the reasons behind any dress code and to have such policies written down and clearly communicated to all staff. Emphasis is placed on policies being reasonable and proportionate. But what of the employer who seeks to introduce a new, more stringent policy on tattoos and piercings, or an employee who intentionally contravenes an existing policy? This strays into the area of dismissal, and whether such a dismissal is “fair”. The Employment Rights Act 1996 sets out five specific grounds for dismissal that may be considered to be fair, one of which is conduct.

Issues of conduct can include the refusal of a lawful request, such as the request to cover any visible tattoos or piercings. In deciding such a claim, the Employment Tribunal would consider whether the request was reasonable. In the case of a tattoo policy it is likely that this will include consideration of whether the policy itself is reasonable. Similar rationale to the discrimination legislation is likely to be used – does the policy address a legitimate business need, and if so, is the effect proportionate to the outcome it wants to achieve? It is wise to have accessible policies and to ensure any changes in policy are reasonable and communicated effectively to employees, but the grounds for challenging such policies are limited under current legislation.

Nick Jones is a partner and Matthew Hobbs is a trainee solicitor in the employment law group of Lyons Davidson.