Your hostess suddenly appears with a face tattoo - is this permissible?
Nowadays many people – not just construction workers and footballers – love them: tattoos. Tattoos do not usually pose a problem if they can be covered by clothing, but an employer may have difficulty with tattoos that are always visible. So, what do you do if your hostess suddenly shows up with a tattoo that literally colours her face?
The employer’s right to issue instructions
The basic principle is that employers have the right to issue rules on staff appearance and the clothes they are to wear at work, but this power does have limits. Reasonableness and fairness are major factors, as well as human rights treaties and the Constitution. Of relevance here may be whether a company actively pursues policies on employee grooming and appearance, or even specifically on tattoos.
In 2021, the Hague Court of Appeal had to consider whether a tattoo policy falls within the limits of the employer’s right to issue instructions and is therefore valid. The company – a transport company – had a tattoo policy for its ticket inspectors, as visible tattoos allegedly detracted from the neutral, professional and uniform appearance expected of ticket inspectors. Tattoos were permitted only if covered by the uniform.
In this case, the Court of Appeal made short shrift of this tattoo policy. The employer’s justification did not convince the Court of Appeal, as even the police had switched to a less stringent tattoo policy permitting visible tattoos. The Court of Appeal found it significant that the tattoo policy was inconsistently applied, as the transport company only applied the rule to ticket inspectors. What is more, if the same ticket inspectors were working in civilian clothes, tattoos were allowed as they would have to blend in with the crowd.
The Court of Appeal held that a tattoo policy restricted employees’ personal expression and, as a result, in principle violated the right to respect for privacy. The employer must be able to justify this violation: the rule must serve a legitimate purpose and the policy must be an appropriate means to achieve this purpose. This requirement was not met in this case, as a result of which the tattoo policy was declared invalid and even the ticket inspectors were permitted to have visible tattoos when working.
Individual weighing of interests
Less recently, in 2010, the employment contract between KLM and a flight attendant was terminated because the flight attendant had visible tattoos and piercings and very short hair. The sub-district court then ruled that those who choose the profession of flight attendant accept that a uniform must be worn while working and that strict rules are imposed on their appearance. The sub-district court found that the flight attendant, by having her hair cut so short that this caused discussions about its length, had betrayed KLM’s trust to such an extent that fruitful cooperation was no longer possible.
In a nutshell, whilst policies may be invalid if they overly restrict employees’ freedom, there is no good reason for them and they are also applied inconsistently, any unwillingness to conform to the rules may well lead to the termination of the employment relationship in individual cases.
Conclusion
In principle, as a business owner in the hospitality industry, you are free to include rules on tattoos and their visibility within reasonable limits. Whether a tattoo ‘should be permissible’ or whether the employer can intervene if confronted with one needs to be assessed on a case-by-case basis taking account of all the circumstances of the case. Obviously, visibility, location and the type of image are relevant, but the type of company and the employee’s position within it are also important, as is the question of whether the employer has a policy on the matter. The corporate culture, the type of guests and the company’s position in the market may be decisive in this respect.
A barkeeper in a pub with an eye-catching tattoo will usually not be a problem, but a sommelier in a restaurant may have to accept more far-reaching instructions in terms of work clothing and appearance. The employer may object to visible tattoos in such a situation. If the parties subsequently fail to reach a solution themselves, this may disrupt the relationship and lead to termination of the employment contract.
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