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16th March 2017

Dress codes, tattoos, piercings and discrimination

Many employers in the care sector will have considered and may even already implement a dress code in the workplace. Applying dress codes fairly across a number of employees from a variety of racial or religious backgrounds can be notoriously difficult and has thrown up many issues over the years including gender, religion and belief, and racial discrimination. However, employers should note that, across all of these issues, one key idea can be adopted. If employers apply a fair and consistent approach to the issue of dress codes in the workplace to balance the health and safety and practical needs of the business, and protecting employees’ individuality and protected characteristics, a happy compromise can be achieved.

The advantages of having a code are obvious and include:

  • Maintaining professionalism within the workplace;
  • Creating a company image or branding; and
  • Creating a work atmosphere

A more recent concern for employers surrounds tattoos and piercings, and to what extent they are acceptable in the workplace. It is estimated that approximately one fifth of all UK adults have a tattoo, and this form of art is becoming more socially acceptable.

Some employers take a very tough stance on tattoos, including the police who banned tattoos for all officers and staff on the face, hands and above the collar line in 2012. This was intended to uphold their corporate image, and it was felt that visible tattoos were damaging. Certain employers in the care sector may have adopted a similar approach. However, the police federation has called for police forces to relax the rules, believing the ban on visible tattoos may hamper the recruitment of promising candidates. It is likely that other employers may face the same difficulties.

While the development of dress codes is entirely up to the discretion of each employer, it is always important to make sure there is a good business reason for such a policy. This may include asking employees to cover up visible tattoos if they are in customer or client-facing roles.

Ban on wearing headscarves

The European Court of Justice has this week confirmed that an employer’s ban on the wearing of religious dress for employees in contact with clients could be justified and was not discriminatory.

In the case of Achbita and another v G4S Secure Solutions NV, Ms Achbita told her employer that she would start wearing a headscarf as part of her Islamic faith. The employer was clear that the wearing of any religious dress was contrary to its rules on neutrality, which applied during contact with clients. The employer’s policy on dress codes was updated accordingly.

It was decided that such a policy was not directly discriminatory if the rules were applied consistently across the board. However, it would be indirectly discriminatory if people of a particular religion were at a disadvantage, and the employer could not justify the policy as being a proportionate means of achieving a legitimate aim. If there is a legitimate aim (such as neutrality), the means of achieving it must still be appropriate and necessary.

Points to note

To avoid falling foul of discrimination legislation under the Equality Act 2010, consider the following:

  • Dress codes allowing for different attire for men and women can be acceptable and reflect the differences between male and female dress. Just ensure that the standard of dress is the same for men as for women. Providing both sexes are required to dress to the same level of formality, there should be no less favourable treatment.
  • There are working environments where a more prescriptive dress code will be perfectly acceptable, such as where health and safety is an important part of a particular role. For example, piercings in certain hospital-type environments may need to be taped over or removed. Other businesses require their employees to promote their corporate brand with what they wear by stipulating headscarves are certain colours.
  • When a dress code is more prescriptive, it should take into account the concerns of individual employees when those concerns are based on religion, sex or race etc. For example, employees can ask for a particular requirement of a dress code to be relaxed or varied because of their religion or belief. Often such changes are minor and can easily be accommodated, such as a discreet cross being worn by aircraft cabin crew. However, it may be possible to objectively justify certain restrictions if they are a proportionate means of achieving a legitimate aim, such as a Chaplin being required to remove a cross he wore when on a hospital ward for health and safety reasons.
  • Any policy on tattoos should also factor in disability discrimination. Some people may have tattoos to hide a severe disfigurement, and a dress code policy should be flexible to allow for this.

It will always be important for companies to think about how their dress code comes across to customers and clients, but it is just as important to consider what the workforce thinks of such a policy. Consultation with staff before introducing such a policy is likely to achieve a more successful outcome as employees will understand the policy from the beginning, and have the opportunity to give their input.

Employers will see this result in improved staff morale, as well as maintaining the company’s image and satisfying any necessary health and safety requirements.

Tattoos at work are likely to continue to be a source of contention as some will see them as art while others consider them taboo. However, whichever side of the line you fall on, it is important that any policy should always aim to maintain a consistent approach.

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Anthony Fox

Napthens LLP – Employment Law Specialist

Anthony is one of our Employment Law Specialists from Napthens Solicitors. Read more

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