Should workplaces still ban visible tattoos?

With news that Air New Zealand has watered down its ban on visible tattoos following controversy surrounding unsuccessful applications from candidates with Maori tattoos, many may now be questioning whether organisations should still have a complete prohibition in this area.

The news

Statistics show that one in five New Zealand adults have at least one tattoo, with facial and other tattoos considered an important part of Maori heritage and cultural identity. The news that Air New Zealand will cease operating its policy banning all visible tattoos at work may perhaps be seen as outdated within the country. From 1 September 2019, an updated policy will state that only visible tattoos which are deemed offensive will be prohibited.

The law

In the UK, there is no specific law which protects individuals against less favourable treatment or detriment on the ground of having a tattoo; therefore, it is up to each organisation to decide what rules they will have in place about tattoos. As such, most employers would include rules regarding tattoos within their organisation in their dress code or appearance policy. Generally, it was common to find that most workplaces had a complete prohibition on all visible tattoos. For example, if a business has a policy that all job applicants with a visible tattoo will be unsuccessful, there is no specific law which prevents this happening.

There is, however, protection where a tattoo can be linked with a protected characteristic as set out within the Equality Act 2010. For example, a tattoo or body art which is linked to an employee’s religion or race will receive protection against discrimination. Therefore, even though a prohibition on visible tattoos applies to all members of staff, it will create a particular disadvantage for those with the protected characteristic of religion which requires a visible tattoo as part of their observance of this religion. As such, indirect discrimination will take place unless it can be objectively justified.

Due to the need for objective justification, employers should have considered the reasoning behind introducing rules on tattoos to ensure they had a legitimate aim which is achieved in a proportionate manner by their policy.

The business case for banning visible tattoos

It is for each company to set dress and appearance standards that apply to employees in line with business needs and objectives. In certain businesses, it may remain the case that banning visible tattoos is necessary to meet aims in relation to brand, image and neutrality. Historically, many employers have relied on the policy of conveying a professional image to customers or service users and, in certain professional sectors, it may still remain the case that a blanket ban is required to ensure this aim is achieved. It will be key, however, that there is a sound business reason for doing so in order to objectively justify any indirectly discriminatory treatment.

Rather than having a complete ban, some organisations have been reviewing their policies to allow certain tattoos but continue prohibition against others. An example of this is the Metropolitan Police Force which used to have a complete ban on facial tattoos, hand or above the collar tattoos, and any tattoos deemed discriminatory, violent or intimidating. Between April 2017 to March 2018, tattoos were the reason behind the rejection of 10% of the 13,000 applicants to join the force. Therefore, the ban was removed and a new policy of reviewing visible tattoos on a case-by-case basis was introduced. Watering down a ban to prohibit tattoos in certain areas is likely to be sufficient to meet the policy’s aim in most cases; for example, since 2014 the British Army only prohibits tattoos which are visible on passport photographs.

The business case for allowing visible tattoos

In similar circumstances to New Zealand, a 2015 survey found that a fifth of all British adults have a tattoo. Having a tattoo is also more common in younger individuals, with 47% of millennials having at least one tattoo compared to 30% of 25–39 year olds. It would appear; therefore, that significant numbers of job candidates and employees will have a tattoo meaning a complete prohibition on visible tattoos may be out of place in modern society.

For example, consider a business in the creative sector which has a prohibition on visible tattoos. Should a candidate apply for a role, even if they are the best person for the job, the ban means that their application will be unsuccessful as their appearance breaches this policy. Continuing to apply such a ban in modern society is likely to hinder recruitment decisions, especially when recruiting from the millennial talent pool or in certain sectors where candidates are more likely to have a tattoo.

Reviewing and updating policies to ensure these allow the best applicant to be awarded the job, as well as retain employees who go on to get a visible tattoo, while achieving the overall aim behind the policy is key. For example, if the policy is in place to maintain a professional image, a ban on offensive tattoos or those located in certain areas, such as the face, will help keep the aim in focus while limiting the negative impact on those with non-offensive visible tattoos.

An alternative to an outright ban where certain restrictions are needed is to introduce a policy whereby tattoos are reviewed on an individual basis in line with the objectives behind the current dress policy. Although this creates an opportunity to allow employees to have certain tattoos, for example those in certain places and any which are not deemed offensive, the difficulty is that a lack of clear rules may lead to inconsistency and complaints being raised about decisions. With such a policy, however, there is an opportunity to speak to each individual and discuss the tattoo matter on an individual basis, ie whether they can cover up an unacceptable tattoo so that it does not present an issue going forwards.

Whatever the case, in modern times, employers with a complete ban on tattoos may find that this is outdated and not in line with the appearance of their future talent pool. However, where prohibitions are necessary, ensure there is a good business reason for doing so and consider whether additional flexibility can be built into such a policy.