Think twice before sacking an employee for getting a tattoo

 
Katee Dias
Horrible tattoos
A massive and violent bloodbath scene on the neck is very different to a small dolphin on the ankle (Source: Getty)

Beauty is in the eye of the beholder – some love tattoos and believe they are works of art and others simply despise them.

Whatever your view of their aesthetic appeal, however, as they have become increasingly common, tattoos have also become a dilemma in many workplaces.

There have been reports of people with a tattoo on show not being offered a job or promotion, for example, and others allege that their employment has been terminated as a result of their inking. This is backed up by findings from Acas, which has stated that “individuals with visible tattoos/piercings appeared to be stereotyped and faced stigma”.

It is important to note that having a tattoo is not a “protected characteristic” under discrimination laws, so at first glance it might seem there is little chance of successfully challenging such a situation.

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However, if it is the case that, for example, an employer finds a tattoo on a man acceptable but a tattoo on a woman unacceptable, there could be grounds for a sex discrimination claim. There is also a potentially interesting question about whether there would be any age discrimination issues – is it more common for younger people to have a visible tattoo?

It depends what it looks like

In dismissal cases, employers need to consider carefully the laws on unfair dismissal if the employee has over two years’ service.

Would there be a fair reason for dismissal in a case where an employee simply gets a visible tattoo? Some may argue that their position becomes untenable because the company’s corporate image is damaged. Whether this would be considered by an Employment Tribunal as a fair reason for dismissal will depend on the specific circumstances.

Three Japanese men show off their tattoos showing
You should probably cover these up in the office (Source: Getty)

What does the employee do? If they work in the photocopying room (so are not seen by the public or clients), it is a very different situation to when the employee is a receptionist at an investment bank. What is the tattoo like? A massive and violent bloodbath scene on their neck or rude words across their knuckles is very different to, say, a small dolphin on someone’s ankle (think Samantha Cameron).

Body art or belief?

Many employers seem to take a pragmatic approach to tattoos and simply require them to be covered at work. However, there can still be potential challenges to such rules as an employee may argue that they have their tattoo for religious reasons or due to a genuinely held belief. This leaves employers grappling with discrimination laws which protect religion and belief.

And what happens if an employee successfully sues for unfair dismissal or discrimination? While the main element of compensation in an unfair dismissal claim is capped at just under £79,000 (or one year’s salary if that is less), in sharp contrast discrimination claims are uncapped, meaning a potentially very expensive bill for the employer.

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In addition to the financial consequences, there are the added issues of reputational damage as the claim will have been played out in the public arena of the Employment Tribunal, as well as the time and stress involved in a litigation process and the detrimental impact that it is likely to have on employment relations.

So, all in all, employers should think carefully before banishing those employees with visible body art from the workplace. But before getting any obvious inkings, individuals would do well to remember that there will be many employers out there who will judge them on their body and not their brain.

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