But how does this translate to those of us who spend most of our days in the office – and is it possible to claim discrimination if we feel we’ve been passed over due our body illustrations?
Employers may disapprove of appearances that do not come across as “professional”, or which (they feel) do not give the right impression to clients and co-workers. Tattoos – by which I don’t mean a discreetly placed flower or dolphin – are the most obvious to fall into in this category.
In September, workplace advisers Acas reported that employers are still judging people on their tattoos. While most companies will have glossy brochures and websites confirming their commitment to equal opportunities for both applicants and employees, the truth can be very different – especially for an individual who is heavily and visibly tattooed.
Before getting substantial ink done, it’s worth noting that an employee’s appearance is not a characteristic that is protected under the Equality Act. Many other related characteristics, such as disability, gender reassignment or religion are protected by the act. This means that for an employee or interviewee to win a discrimination claim, a heavily tattooed applicant would need to show that his or her appearance (and their tattoos) were intrinsically linked to one of the characteristics protected under this act.
For an employer to win a case, it would need to show that its requirement for staff not to display any tattoos is a proportionate way of addressing a pressing business need.
In the case of tattoos, it would be easy to imagine an employer saying that a customer-facing employee should not be tattooed for fear it may impact the company’s corporate image.
This means that a heavily-tattooed job applicant has little legal protection if they are turned down for a job based on their appearance, unless he or she could show that it was a requirement of, say, their religion or race, that they be so heavily tattooed.
One example where this could be a defence would be an individual with Māori origins bringing a race discrimination claim if they were refused employment because of their tattoos, which are an integral part of their culture.
However, it’s also worth noting that the Attorney General of the Court of Justice of the European Union recently indicated that it may not be discriminatory to ban veils in the workplace as religion was a choice and could be left at the door of the office.
This jurisprudence would make any discrimination case based on cultural tattoos more difficult to bring as it could be envisaged that the tattoos were not an immutable characteristic of race, but rather the individual’s choice to have them. There is a distinction which may be of importance between the two cases: whilst a veil, however central to one’s beliefs, can be easily taken off, this is not the case for tattoos.
In practice, discrimination of this kind generally occurs more subtly than outright rejection for a job based on an individual presenting for an interview with visible tattoos. Therefore in current practice it is difficult for a claimant to prove that they have been unlawfully discriminated against because of their appearance. A manager who does recruit on appearance (for example, seeking to fill their team with “traditionally” attractive employees) must however tread carefully to avoid legal liability.
• Paul McAleavey is an employment solicitor at specialist City employment law firm Brahams Dutt Badrick French