No (visible) tattoos please
As procurement consultant Jo Perkins reportedly seeks legal advice in connection with the termination of her contract with Salisbury FM Ltd for allegedly refusing to cover up her tattoo in accordance with the company's policy (see original article here), we set out some tips for rules on appearance and dress at work:
- Consider whether rules may be indirectly discriminatory: for example, a ban on beards will have a bigger impact on those whose religious beliefs require them not to shave, and a ban on jewellery may disproportionately affect those who wish to wear a religious symbol.
- If a group with a particular protected characteristic is more significantly affected by a rule regarding appearance, consider whether this rule is a proportionate means of achieving a legitimate aim. Case law suggests that employers are more likely to be able to justify an otherwise indirectly discriminatory rule if it is put in place for health and safety reasons, rather than to project a particular corporate image.
- It's fine to have different rules for men and women so long as these reflect conventional standards of dress and appearance. It would not be appropriate to have a dress code only for one gender or to enforce a dress code more strictly in respect of one gender.
- It may be necessary to make reasonable adjustments to rules on dress and appearance for disabled employees, for example if an individual with long term back problems needs to wear soft soled shoes, it may well be appropriate to relax a rule that requires formal footwear.
So what about tattoos? There is no obvious link between tattoos and any particular protected characteristic and so no obvious discrimination angle. Many employers do require staff to cover up visible tattoos while at work, and we don’t think there is any inherent difficulty with this. I think Ms Perkins may find it tricky to progress any claim based on 'diversity', which seems to be the angle she's currently exploring.
If a member of staff persistently fails to comply with rules on dress and appearance we would advise you to take a step back and consider whether dismissal is reasonable in the circumstances before terminating their employment, especially if (unlike Ms Perkins) the individual is an employee with two years' service who can potentially bring an unfair dismissal claim.