Although freedom of expression is enshrined in South Africa’s constitution and protected by labour law, discrimination in the workplace remains a challenge, even over something as trivial as tattoos.

CRS Technologies helps its clients deal with a range of HR issues, including this one. The company has previously stated that tattoos fall under freedom of expression and, while this form of body art is open to public scrutiny and debate, labour law protects the freedom of expression but it does not specify how employers should treat workers with tattoos.

Nicol Myburgh, Head of CRS Technologies HCM Business Unit, explains that whatever legal argument may apply, the situation tends to favour the employee over the employer.

Myburgh says the Employment Equity Act makes room for the freedom of expression, so if an employer impedes that right, they are actively discriminating against the employee. However, there is a balance in this situation where employees have to act in good faith towards their employers.

Myburgh adds, “This is when common sense and logical thinking should prevail.”

He explains that for roles that are very visible or traditionally very professional-looking, having tattoos could limit a person’s ability to secure or retain the role. However, if tattoos can be covered during working hours, then a person can take on such roles, even if they are covered in ink.

“It also depends on the nature of the business. For example, if a law firm has a dress code policy that does not allow tattoos, then it must be adhered to. However, if a creative director of an advertising company has visible tattoos and no company policy is being infringed on or rule broken, then there should be no problem.”

As with all labour law, the merit of arguments can only be weighed when situations arise in the workplace. If a tattooed individual is unsuccessful in applying for a job and believes the decision is based on their appearance, they could have a case to petition the CCMA.

Myburgh concludes, “HR has to play the middleman, balancing the company’s needs versus the employee’s needs to reach a middle ground, while ensuring all outcomes are fair. In the case of tattoos, HR should consider the merits of the company’s dress code, the business reasoning behind the dress code, and any adverse effects of allowing tattoos.”

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