Q&A: Can you refuse to hire or dismiss an employee for having tattoos?
In order for you to successfully include this within a policy, you must be able to show you are implementing this for a clear and justifiable reason.
The short answer to this question is yes. UK workers have no standalone protection under discrimination legislation for having a tattoo. As an employer however you may not always be protected when refusing to hire or dismissing an employee for the sole reason of having a tattoo.
It is not uncommon for businesses and companies to impose a ban on visible tattoos (and piercings) within the workplace.
How can this be enforced? One stance you could take is to include in your dress code policy or other appearance policies that employees must not have visible tattoos whilst in the workplace. Reasons for this could include the nature of your business, your clientele, the workplace environment or the feeling that it will detrimentally affect your business.
In order for you to successfully include this within a policy or for you to create a policy on this alone, you must be able to show you are implementing this for a clear and justifiable reason.
If you are refusing to hire or dismissing an employee due to the fact they have visible tattoos you may need to demonstrate you have an objective justification for your decision or reasoning. How does this affect your business? What are the negative implications on the business? This needs to be clear in your mind before any action is taken. Legally however doing so is low risk.
Can you dismiss an employee who you later discover has tattoos or who gets a tattoo during the course of their employment?
Again, the answer to this question is yes but it may be risky to do so if the employee has more than two years service. Whilst workers have no standalone protection under discrimination legislation for tattoos you may still be open to a claim for unfair dismissal. If a worker has more than two years service you must ensure you have a clear and justifiable reason for that dismissal. The discovery of a tattoo after two years of service is unlikely to justify a fair dismissal on its own.
There is also a potential risk of discrimination. You must not dismiss an employee due to their tattoos in a discriminatory manner and you must apply any policy in a consistent way. For example, employee A is a male who has visible tattoos and employee B is a female who has visible tattoos. If you dismiss employee A but not employee B (or vice versa) and the reason for the dismissal is their tattoos, a claim for sex discrimination would be difficult to defend. It is generally not acceptable to impose different rules on appearance, or different standards of dress, on men and women (and this includes any workplace policies on tattoos). If a policy on tattoos or a policy containing rules around tattoos has an adverse impact upon a particular gender, race or religious group that could be contended to be indirectly discriminatory and if the facts/statistics supported such an argument you would need to be able to defend a claim by showing that you have objective justification for the policy. There does not currently appear to be any documented cases of this being taken to a Tribunal but it is an area where a dispute could arise.
In September 2016 ACAS reported they feel a number of employers are missing out on talented workers due to their reluctance to employ workers who have visible tattoos. Tattoos are also becoming more and more common. Some studies have shown nearly one in three young people now have tattoos. Will there be a time in the near future where we might look at the legislation around this? As tattoos are becoming increasingly popular, you may want to think about drafting a policy around tattoos, whether it is that you take the stance they have no place in your business or whether you are potentially looking at becoming more flexible in your approach.
Shamir Sumaria (email@example.com) is a member of the Birmingham Employment, Pensions and Immigration Team. If you have any questions, please do not hesitate to contact Shamir or speak to your usual Weightmans advisor.