Amongst the recent raft of new Guides from ACAS is one relating to dress codes and appearance in the workplace.
There isn’t any recent new case law in this area, but the issues of tattoos and body piercings in particular are exercising some employers. For instance, we have recently advised various businesses on these issues, from professional service firms and estate agents to manufacturers, both in the context of recruitment as well as day to day working arrangements.
Many employers are keen to portray a corporate image that is a manifestation of their professionalism and quality. For any member of staff who might come into contact with a customer or client, personal presentation is often seen as a key part of this.
Those in HR will recognise the need to take account of the Equality Act 2010, particularly in relation to the protected characteristics of religion and belief. What is less straight-forward is where the law doesn’t give a clear answer, but sets a competing set of expectations.
While employers feel that they should have control over how their staff present themselves, many employees feel that part of their individuality as a human being is not something which they should have to compromise.
There may be a generational dimension here: one statistic readily quoted relates to the low percentage (c. 5%) of those over 60 with tattoos, compared with a far higher percentage of younger people – it is said that possibly as many as half those in their 20's have some tattoo or other body art.
Will this give rise to a rash of indirect age discrimination claims from employees and job applicants arguing that dress and appearance codes are unlawful discrimination? I very much doubt it.
However, what is causing greater concern is the fact that younger staff feel that it is an invasion of their personal lives to ask questions about body art, and that it is a bridge too far when their employer tells them that they must cover up.
Again, it is unlikely that there will be a substantial number of successful claims brought on the basis that an individual’s right to a personal life is being interfered with.
However, those employers actively seeking to connect with a younger audience – whether employees or customers – may find themselves pressured into reviewing their absolutist policies. A measured approach following consultation with staff is likely to help introduce a more sustainable policy.