I sometimes get calls for advice from clients on what they can and can’t demand or forbid from staff, tattoos and piercings seem to be high on the list. In my case I had a dilemma about nurse who boasted about her multiple, hidden, piercings which were her business as far as I was concerned. What made me cross was the fact that she made it clear that she also had a pierced tongue from which she removed the stud before she arrived in the morning, and therefore would not advise a patient about the risks of oral piercings if she had been requested to do so. As it was she walked out after 3 days giving the reason that our standards were ridiculously high – hey ho.
From the informative “briefings digest’ from The Lawyer.
My HR adviser in “the main hoose” said, “well that would be the case, it’s an extension of a dress policy, amend your policy to include visible tattoos and piercings and you’re fine.”
Recent newspaper reports of “a business executive … sacked for having a visible tattoo on her foot” raise modern-day questions of personal taste and choice – and potential legal issues for employers wanting to set standards of appropriate dress and appearance.
While tattoos are becoming more acceptable in our society – the Prime Minister’s wife has one, and even David Dimbleby famously had a scorpion inked on his shoulder recently – many employers feel uncomfortable with visible tattoos, especially worn by customer-facing employees.
In the press story, the business executive (a contract worker), was quoted as saying that she was consulting a solicitor to see if the termination of her engagement was “discrimination under inclusion and diversity laws”.
So, does she have a claim?
Clearly, she felt unfairly treated. But does she have any cause for action under UK law?
Only employees with more than two years’ service can bring a claim for unfair dismissal. In this case, the person was an independent contractor who, reportedly, had only been with the company for five months. So, on the face of it, such a claim would not be open to her.
In addition to any claims arising from the end of employment, employees and contractors have the right not to be discriminated against on the grounds of a ‘protected characteristic’. This includes gender, race, religion, belief and disability. It does not – at present anyway – include (of itself) having a tattoo. Indeed, tattoos and piercings are specifically excluded from falling within the definition of disability discrimination (as constituting a “severe disfigurement”) under the Equality Act.
Employers do need, though, to consider whether the standards they wish to set are equally applied regardless of gender, race, religion or belief. Last year, a case involving BA’s introduction of a
new uniform policy for customer-facing staff was brought in the European Court of Human Rights, after the employee failed to establish her claim in the UK courts.
The right balance, said the Court, must be struck between the protection of an individual’s rights (in this case wearing a visible cross) and the rights and interests of others. In this case, the right balance had not been struck and the claimant was successful.
In the case of the contractor with a visible tattoo, as long as the policy applied equally to all genders and the tattoo was not a manifestation of religion or belief, it is difficult to see on what basis a successful claim could be brought.
Employers have rights, too. And one of those is the right to tell people who work for them how they should present themselves on their behalf (striking the right balance, of course).