Discrimination in the workplace against tattoos and piercings

Applying dress codes fairly across a range of employees from a variety of backgrounds can be difficult, but if employers apply a fair and consistent approach, there should be limited issues.

Before discrimination in the workplace against tattoos and piercings can be considered it is first worth noting what is discrimination?

What is Discrimination?
The Equality Act 2010 speaks of discrimination as two distinct concepts:
• Direct; and
• Indirect discrimination.

Direct Discrimination
• Direct discrimination cannot be justified under any circumstance.
• Direct discrimination arises when an employer treats an employee differently or less favourably than another based on one or more of the protected characteristics.

• The protected characteristics are:

  1. Age,
  2. Disability,
  3. Gender reassignment,
  4. Marriage and civil partnership,
  5. Pregnancy and maternity,
  6. Race,
  7. Religion or belief,
  8. Sex,
  9. Sexual orientation

Example
If an employer chose not to hire, train or give the same opportunities as anyone else based on any of the characteristics above. It would have to be shown by evidence that the employer chose to not give the same opportunities as the other employees based on these characteristics.

Example
A saleswoman informed her employer that she wants to spend the rest of her life living as a man. As a result of this, she was moved to a role without client contact against her wishes.

Indirect Discrimination
“Person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”

• Indirect discrimination is when policies or rules conflict with an employee but are not explicitly aimed at or targeted at the individual because of their protected characteristics.
• Indirect discrimination can be justified within reason.

Example
If there is a policy that prohibits the manifestation of a religious belief at the workplace, such as a headscarf, turban or a crucifix, it could be indirect discrimination. It would have to be shown that it is not personal.

Example
There is a clause in your contract which says you may have to travel around the UK at short notice. It is difficult for you to do this because you are a woman with young children. This clause, therefore, places you at a particular disadvantage. It also places women generally at a disadvantage, as they are more likely to be the carers of children.

Tattoos and Piercings
The development of dress codes is entirely up to the discretion of each employer; however, they must have a good business reason for such a policy. Some employers may feel that tattoos and piercings are at odds with the image they are trying to project; therefore, the organisation may ask employees to remove piercings and to cover tattoos while they are in the workplace. This may also include asking employees to cover up visible tattoos and piercings if they are in customer, client-facing or care roles.
Workplaces are to consider the balance between health and safety and practical needs of the business and protect an employees’ individuality and protected characteristics.

Example
The reasoning could be a valid health and safety reasoning, for example, no jewellery to be worn in a food preparation factory because foreign bodies are getting into the food or that dangling earrings could be caught in machinery.

Employers must carefully consider the reasoning behind imposing any rule regarding tattoos and piercings, and there should be a legitimate reasoning for such rule. Employers should also consider and remember that all dress codes must apply to both men and women equally. Further, any policy on tattoos should also factor in disability discrimination as some employees may have tattoos to hide a severe disfigurement.

For further information and advice, you can ask the Legalally’s experienced Employment lawyers instantly through your mobile, tablet and laptop from anywhere in the world. We also offer instant free consultations.

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