Over the last few years, tattoos have had a makeover. Previously, they were viewed as the insignia of criminals and those connected with unsavoury counter-cultures. It is therefore no surprise that many employers’ dress policies have included express prohibitions regarding tattoos.
Now, however, tattoos are seen by many as an acceptable form of artistic self-expression and the permanent fashion accessory of choice. Larger tattoos in prominent areas such as the face, neck, arms and legs, as sported by celebrities such as David Beckham, Lewis Hamilton and Miley Cyrus now appear to be particularly popular. Recent research suggests that one in five British adults now has a tattoo, with the highest concentration of tattooed persons surprisingly being those aged between 30 and 39, where one in three have a tattoo.
At present, there is no express legal protection for those with tattoos. Consequently, on the face of it, an employer could refuse to recruit someone with visible tattoos or require them to be covered up.
However, it is possible that potential discrimination claims could arise from such actions. For example, tattoos have cultural and religious significance for the Maori people of New Zealand – with facial tattoos being popular apparently due to the belief that the head is sacred. If an employer were to refuse to employ someone of Maori heritage because of their tattoos, this could potentially give rise to discrimination claims under the Equality Act 2010 on the grounds of not only race, but also religion or belief. In light of the above, it is not surprising that Air New Zealand has recently announced that its staff can display non-offensive tattoos at work.
Further, given that tattoos are most prevalent among British adults in their thirties, refusing to recruit people with visible tattoos could also give rise to possible age discrimination claims. Research carried out in the US also suggests that more women than men have tattoos, so a blanket ban could also amount to sex discrimination.
Despite the growing popularity of tattoos, many employers and, in particular, certain professions, continue to prohibit visible tattoos and piercings, viewing them as unprofessional and – with particular regard to client-facing roles – giving a poor impression of the employer. This appears to be borne out by research undertaken by Acas, where it found that around 61 per cent of the employers it sampled did not permit tattoos or piercings. Acas has recently published guidance for employers on tattoos and piercings, in which it urges employers to “carefully consider” the reasons for imposing any tattoo ban and that they should have “sound business reasons” for doing so.
As the popularity of tattoos shows no signs of abating, employers who have strict dress policies which prohibit visible tattoos are reducing the talent pool from which they can draw suitable candidates. In light of this, the Metropolitan Police has recently relaxed its blanket ban on recruiting candidates with tattoos and now reviews tattoos on a case by case basis. The Metropolitan Police Commissioner, Cressida Dick, explained that this was in part due to concerns that the tattoo ban was deterring applicants – 10 per cent of whom were rejected in 2017 due to having tattoos.
Although the perception of tattoos has generally been rehabilitated – not all are created equal. The design, size and location of tattoos can conjure up very different perceptions. For example, a discreet wrist tattoo is not likely to get the same negative response as an arm sleeve tattoo which has violent imagery.
As the number of people with tattoos increases, it is likely that dress policies will shift from blanket bans to having prohibitions on specific tattoo designs and their location. In the meantime, if employers want to attract and retain talented staff, particularly those aged 39 or younger, they would do well to review their dress policies and ensure that the requirements actually fit their current requirements, as opposed to being based on possibly outdated views of what amounts to a professional image in the 21st century.
Fudia Smartt is a partner at Spencer West LLP