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Tattoo’ll do nicely! Or will it?

Research published this week by the conciliation service, Acas, suggests that some UK employers’ attitudes towards people with tattoos are becoming outdated – and those employers are missing out on talent. In recent years tattoos have broken into the mainstream and become much more common. A 2015 YouGov poll suggested that young people in the UK are far more likely to have them. However, this cultural change presents a dilemma for those employers who want the best staff but who are in the habit of refusing to hire staff simply because they have tattoos.

Having a tattoo is not a ‘protected characteristic’ under the Equality Act 2010. This means that, in contrast to a person’s sex, sexual orientation, race, age, gender, disability or religious belief, an employer can ‘discriminate’ against an employee or job applicant who has tattoos. The Equality Act 2010 (Disability) Regulations 2010 even go so far as to exclude tattoos from the definition of ‘severe disfigurements’ which might otherwise amount to a disability.

Broadly speaking, employers have the right to set dress codes reflecting how they want their staff to dress or appear. The code will vary with the type of organisation and the sector the employer operates in.  Many businesses in the service or professional sectors will not want client-facing staff to have visible tattoos. They may feel that tattoos conflict with their corporate image. So, as harsh as it sounds, employers are perfectly within their rights to refuse to offer employment to someone with a tattoo. Employers can even dismiss an employee because they have become visibly tattooed – provided a fair dismissal procedure is followed.

It is ultimately a decision for an employer whether visible tattoos should be viewed as affecting an employee’s ability to do the job for which they are being, or were, hired. Whilst an employer may be reluctant to hire someone with visible tattoos to work in a client-facing role, there may be less concern if that employee will have no contact with the public. Many organisations are content to specify that tattoos must not be visible on the hands, neck or face, but take the view that tattoos considered offensive are unacceptable, whether visible or not.

However, employers still need to be careful about enforcing a blanket ‘no tattoo’ policy.  An employee may have visible tattoos for religious reasons – and so be protected from discrimination if they can demonstrate that the tattoo is connected with the expression of their religious belief.

In fact, accompanying the change in social attitudes toward the acceptability of tattoos identified by Acas, we are starting to see a trend in which tattoos are becoming something of an asset to a job seeker. New industries, such as the digital sector, thrive on creativity. Not conforming to traditional workplace norms may be viewed as a positive. As the millennial generation seeks work/life balance and flexibility over pay and benefits, perhaps we are witnessing the dawn of a new age in which employers in some sectors will ask staff proudly to display their tattoos – as a badge of their individuality and creativity – instead of asking them to cover them up.

It is unlikely that tattoos will fall within the remit of the Equality Act any time soon (if ever). But this new research does shine a light on changing attitudes in the British workplace.  If nothing else, the survey should serve as a warning to employers not to squander talent by writing-off job applicants simply because they have tattoos. That said, a job-seeker would still be well-advised to think carefully before getting a tattoo – especially a visible tattoo. Just because tattoos are becoming more widely acceptable does not mean that acceptability is becoming universal. A prudent job-seeker may wish to reflect on the unintended consequences a tattoo may have on their career prospects, especially in later life.

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Paul Kelly

Partner and Head of Employment
Employment Law
0113 227 9249
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Paul Kelly Blacks Solicitors LLP