Tattoo discrimination

Many employers will be familiar with employees who are facing disciplinary action complaining about ‘discrimination’ against them. For example, recent stories in the press have concerned tattooed employees who have either been dismissed or have, so they claim, been ‘forced out’ claiming that they have been subject to ‘discrimination’. However, such complaints often show a misunderstanding of UK Equality law.

The 2010 Equalities Act defines discrimination as less favourable treatment of people when the reason for that less favourable treatment is one of the protected characteristics set out in the act. Those characteristics are gender, race, disability, age, sexual orientation, marriage, religion and gender reassignment.

Any discrimination – such as refusing to employ or dismissal from a job – of anyone because of one of these characteristics will breach the Equalities Act and make an employer liable to a discrimination claim, for which there is no cap on damages. However, the Act gives no protection for any less favourable treatment which is not a result of one of these characteristics.

Given this, an employee who is threatened with dismissal for having a tattoo cannot claim discrimination. In general, it is up to employers to set rules concerning how their employees should appear, and if they decide that they will not allow visible tattoos, an employee affected by this decision will not have the right to bring a discrimination claim.

This might be different if they could show that their tattoos were related to their religious beliefs, but the onus would very much be on the employee to show that their religion required them to have those tattoos. Thus an employee threatened with disciplinary action due to having visible tattoos will not be able to claim ‘discrimination’. However, this does not mean that any dismissal which follows will necessarily be fair.

A dismissal has to be ‘fair in all of the circumstances’ and therefore if the rule appears to have been introduced arbitrarily and results in the dismissal of an employee who already has tattoos and who is not in a customer facing role it may be difficult to justify why they should be dismissed.

This does not, however, apply to recruitment – if an employer decides that they will not employ anyone with a visible tattoo they are entitled to do so.

This content is correct at time of publication