Tattoos and body piercings: What should employers do?

Is the issue of tattoos and piercings covered under any employment legislation?

There is no employment legislation which directly covers the issue of tattoos and piercings. The area is usually dealt with in the employee’s contract, the staff handbook and / or the company dress policy which explain the employer’s position.

However, as the recent research by ACAS into the issue of workplace tattoos shows, it’s clear that it is becoming more difficult for an employer to have strict policies in this regard.

So I can’t be sued for deciding not to employ someone with tattoos or facial piercings then?

Well, it’s not that simple. In terms of legislation which may be relevant it is worth being aware of the protection afforded to the individual by the Equality Act 2010 and the Human Rights Act 1998.

The Equality Act 2010 stipulates that, regardless of length of service, it is prohibited for employers to discriminate against an individual if they have a protected characteristic. The act identifies these protected characteristics as age; disability; gender reassignment; race; religion or belief; sex or sexual orientation and it is important that the company’s dress policy should not disadvantage anyone on these grounds.

While this legislation is not directly linked to tattoos or piercings, employers should note that, for example, younger individuals are more likely to have body art (potential age discrimination) and that there may be an argument that a particular tattoo has religious significance for the individual (potential religious discrimination).

The Human Rights Act 1998 entitles individuals to freedom of thought, conscience and religion (Article 9) as well as freedom of expression (Article 10).

Can I adopt a policy which orders employees to cover up tattoos and piercings?

Dress code policies clearly give rise to some complex legal and employee relations issues. It does remain a legitimate business decision to have a dress code policy and the courts have thus far demonstrated a lack of willingness to interfere in managerial prerogative.

Instead, up to this point, the courts have preferred to leave businesses to determine their own rules but, importantly, they do this only as long as the rules are not deemed to contravene discrimination law or the European Convention on Human Rights.

Despite the courts’ historical conservatism on dress policies, employers should perhaps consider taking a flexible view on future dress policies covering tattoos and body art.

It will help companies to establish a defensible position if they allow reasonable accommodation unless there is a reason not to. For example, if they can show that the restriction is necessary for a proportionate and legitimate reason like health and safety they may be able to demonstrate the requirement is reasonable.

How would I apply this policy in practice?

It is also vital that if a policy is to be enforced, it is fair, reasonable, applied consistently and does not disproportionately impact any particular group.

It is good practice to make the company position clear and to communicate it effectively to the workforce so that the expectation is clearly set and the requirements not open to doubt. It may also be worth considering, when creating the policy, consulting with the employees. This would facilitate a collaborative approach and would provide the company with the opportunity to explain its rationale.

What do I need to include in the staff handbook or employment policies regarding tattoos and piercings?

It is important that you consider the issue in your handbook and / or relevant policies. Although we seek clarity, a strict policy may not be the most sensible solution.

Given that an employee can justify a tattoo if it is linked to an illustration of an individual’s religious beliefs you may wish to have some flexibility. It is advisable therefore to use phrases such as ‘employees may be asked to cover up visible tattoos or to remove or cover up visible body piercings’. This leaves open the ability for consideration on a case-by-case basis and affords the employer room to manoeuvre depending on the circumstances.

To ensure legislative compliance it is then essential that employee handbooks are reviewed on a regular basis and that any changes to employee handbooks, employee contracts or employment policies are fully communicated to all staff.

Helen Darbyshire is an experienced HR advisor who has been advising businesses on HR and employment issues for many years. If you would like to discuss this issue in more detail, or have another HR issue you’d like to talk about, please email Helen or call her on 01772 258321.