Are Tattoos Still Taboo In Workplaces?

There have been recent reports of job candidates who were rejected for roles because they had tattoos. Is this lawful and how far can employers take their aversions to tattoos?

Many employers may feel that tattoos give a bad impression to their clients. Broadly speaking, this is an acceptable policy for employers to have. However, care should be exercised before the policy is strictly applied to job candidates and existing employees.

Whilst having tattoos is not specifically protected by equality legislation, all applicants for jobs are protected under the Equality Act if the reason that they did not get a job was discriminatory. Whilst a policy against tattoos may not be obviously discriminatory, a blanket ban could be indirectly discriminatory.

Indirect discrimination occurs where a seemingly neutral provision has a disproportionate impact on a group who share a protected characteristic (such as age, gender, race, a disability). Although a policy against tattoos would appear to affect all job applicants equally, it may, for example, have a disproportionate impact on people from certain cultures in which tattoos are more prevalent, such as those with Maori heritage.

However, employers may be able to justify policies that are indirectly discriminatory by showing that there is a good reason for it and is not excessive.For instance, rather than deciding not to hire someone with a tattoo sleeve, an employer could ask them to wear long sleeve shirts instead.

A blanket policy against tattoos could also be problematic for existing employees. Putting discrimination aside, if an employer dismissed an employee with two years for getting a tattoo, the decision to dismiss would be unfair unless the employer could successfully convince an Employment Tribunal that the tattoo was a substantial enough reason to justify a dismissal. That seems somewhat unlikely.

The best course for an employer is to carefully record the reason a candidate was unsuccessful for a role at interview and think carefully before imposing blanket dress code policies to staff or new joiners.

Rolleen McDonnell is a solicitor at leading senior executive employment law firm BDBF.