discriminationdiscrimination issuesemployment lawrecruitment

Hello and welcome to our first Employment Law Snippet article. These conversational articles aim to focus on one general topic and then have an interesting, non-jargon filled discussion on how that subject affects employees and employers alike.

The first topic is an interesting one: tattoos! You may be thinking “what on earth do tattoos have to do with employment law?” Well, not that much at present but that may start to change in the future.

Are tattoos that important a consideration within employment law? Well, to start, I regularly hear employment-related tales of friends of friends and, recently, I heard about a young woman in her twenties going to a job interview and all, initially at least, going very well with the interviewer. That is, until the interviewer noticed the small floral tattoo on her wrist (which barely poked out from underneath her small watch) and, from that moment, the interviewer appeared to ‘go off’ her, cut the interview short and, lo and behold, she didn’t get the job (which, for the record, wasn’t in a customer facing position).

Is it right that interviewers can hypothetically discount an excellent job candidate simply because of a tiny, non-confrontational tattoo (particularly when the tattoo could be easily covered up?)  This is similar to a hypothetical situation in which, for example, two white male job candidates turn up (on with brown hair and one with blonde hair) and the interviewer simply decides that he trusts blonde people more and, on that alone, goes with the blonde haired person.  As helpful as that might be for myself(!), should that be legal?  Is it right that these situations don’t come within anti-discrimination protection for job applicants under the Equality Act 2010?

Well, there are some potential exceptions to the general rule of thumb that tattoos aren’t covered by the anti-discrimination provisions within the Equality Act 2010.  One of the most common?  Where the tattoo relates to religion (i.e. a candidate turns up with a discreet tattoo of a crucifix, albeit viewable by the interviewer because the individual isn’t wearing a watch) and it can be shown that, without noticing the religious tattoo, the interviewer would have offered the job. 

The problem with this argument, however?  Well, in the case of Eweida v BA, it was held that wishing to take action against an individual wearing a crucifix against the dress code wasn’t religious discrimination because it wasn’t a ‘requirement of the religion’ (i.e. most Christians don’t wear crucifixes because there is no religious teaching to do so), so this principle could apply to tattoos of a crucifix.  (I’ll ignore the more complex case of Eweida v United Kingdom for the purposes of this article.)  However, in some countries, such as New Zealand, certain religions (such as Maori) have religious tattoos which, under Anglo-Welsh law, could well be protected, albeit it is a relatively untested argument so far.

On the topic of religion, we could well continue down that path and debate ‘what is a religion’ with the usual amusing question being ‘does being a Jedi count?’ (following reports that nearly 1% of the respondents to the 2001 UK census put their religion down as ‘Jedi’).  Perhaps a future Employment Law Snippet topic…

Another potential exception?  A job candidate with a Pride flag tattooed on their wrist in the same manner.  Any interviewer who looks at the tattoo and believes the job candidate is LGBT+ and/or isn’t heterosexual (whether accurate or not) and, on that basis, refuses to offer the job is most likely breaching the protected characteristic of sexual orientation under the Equality Act 2010.  It doesn’t actually matter whether the perception of sexual orientation is accurate or not (i.e. if the interviewer believes a job candidate is bisexual, but they aren’t, they still can be held to discriminate due to bisexuality by perception).

The topic of tattoos within employment is likely to get more air time in coming years because, overall, tattoos are becoming more commonplace.  I still recall the media articles over Samantha Cameron having a tiny dolphin tattoo on her ankle and this being considered ‘news’ because she was the wife of the Prime Minister and as a reflection of a modern culture shift.  Nowadays, people are much more likely to interact with customer-facing employees with tattoos and, indeed, any company trying to avoid doing so, may eventually find themselves fishing in a more limited pool of candidates.

In fact, most employers that had an aversion to tattoos, are now aware of the improved public perception of tattoos and, therefore, the limited impact of small, discreet tattoos.  Even with larger tattoos, as long as they aren’t controversial, employers can be open to use of specialist plasters and/or tattoo make-up (and/or a long sleeve dress code) for customer-facing individuals.  Overall, this is now an increasingly common approach in contrast to the more ‘old school’ method of having a blanket ban against tattoos.

In the future, I think employers with overtly anti-tattoo agendas may risk becoming increasingly ostracised on social media and within local media.  This could be almost along the lines of the high heels dress code controversy within the UK a few years ago (and which is currently gaining traction afresh in Japan) where flat soled shoes are perfectly acceptable in most circumstances.  In fact, in the same way as that issue caused a media (and social media) storm, I can foresee detrimental treatment of staff (and job candidates) on the basis of tattoos doing the same in the future.

In this way, I don’t think any additional legal protection is required (in saying this, I disagree with a member of a National Tattoo convention who called for tattoos to become a protected characteristic under the Equality Act 2010 several years ago) as, overall, most employers tend to be near equally wary of negative media (and social media) publicity than Employment Tribunal claims.

So, tattoos.  So far, not the subject of any big legal or media battles.  But into the future?  I reckon the litigation needle will be pushed upwards…  (Sorry!)

My thanks for reading our first Employment Law Snippet article.  Our intention is to publish these weekly and, at present, we have some entertaining topics lined up for the next few weeks!  In the meantime, we hope you’ve enjoyed this week’s topic.