Is banning staff from having a ‘visible’ tattoo discrimination?

'Heavily inked stars such as Rihanna and David Beckham have led a huge rise in the popularity of tatoos’ reported the Evening Standard on 25 Sept 2014. But how do you decide on the suitability of tattoos in the workplace? Are there any equality rights for having a tattoo? Are employers entitled to ask staff to ensure tattoos are not visible? How do we balance rights between a professional image and a socially diverse workforce?

Despite their rise in popularity, tattoos in the workplace remain a contentious topic. It is common for dress codes to require that tattoos are ‘non-visible’. The Met Police hit the headlines for issuing a policy banning employees or staff from having “visible tattoos” and requiring them to register any other body art with their managers on the basis that they were perceived to damage its professional image. This may have been something of an own goal in terms of promoting workplace diversity.

Under UK law, workers have no standalone protection under discrimination legislation for having a tattoo. Under the Equality Act 2010, tattoos and body piercings are expressly exempted from the definition of a disabled person. But don’t be lulled into a false sense of security. A recent article by Personnel Today suggested that statistics seem to reveal that older people are more likely to not have a tattoo. This might mean that a younger worker could potentially claim that such a policy was indirect discrimination on the basis of age.

Indirect discrimination can be justified if an employer could demonstrate that such justification was a proportionate means of achieving a legitimate aim – one aim for example being a need to promote a professional image. But these are untested waters and ultimately it will be up to an employment tribunal to made a judgement. In the meantime, employers might want to consider the wider benefit of attracting and representing, or being seen to attract and represent, a socially diverse workforce.

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