Tattoo in the workplace: Individual Freedom or Stigmatisation?
Tribune of Maître Gianluca LAERA
What does the Luxembourg law say? Gianluca LAERA, lawyer at the Court, at DSM Avocats à la Cour takes stock.
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If wearing a tattoo is part of individual freedom, some tattoos express extreme ideas that can be seen as problematic or even unacceptable in a company. What can an employer do if the tattoo is visible, when hiring but also during the contract? Where is the limit between individual liberties and unacceptable statements?
Freedom of expression versus non-discrimination
The Luxembourg legislation applicable to employment relations does not currently contain any provision relating to tattoos in general. Article L. 251-1 of the Labor Code imposes the principle of non-discrimination to which the employer is bound in the exercise of all his employer's prerogatives. As tattoos are in principle considered an element of physical appearance, it is interesting to note that a differentiation based on the criterion of physical appearance does not constitute discrimination in Luxembourg. Also, in a decision of principle, the French Court of Cassation has ruled that the freedom to dress is not fundamental freedom. As such, it can be restricted.
An overview of measures sometimes implemented by employers
Throughout the employment relationship, the employer is obliged to base his decisions regarding employees on non-discriminatory criteria. However, the employer cannot tolerate that his employees propagate through visible tattoos ideas incompatible with the image or contrary to the company's policy; or the ideas that the company supports or intends to transmit through its services or products. Employers are permitted to include a provision in their internal policies requiring employees to cover their tattoos. Thus, employers have the option of setting dress standards without unreasonably restricting employees' freedom of expression. The same reasoning seems conceivable when the employee wears visible tattoos, particularly through a neutrality clause prohibiting the visible wearing of any political, philosophical, or religious sign in the workplace. However, it must be ensured that the policy is precise, justified, and proportionate to the company's purpose and mission. In no case general considerations linked to the image of the private company or the obligation of dignity of the civil servants and public agents allow, by themselves, to justify general and absolute restrictions regarding tattooing. However, the Luxembourg courts do not seem to be very involved in these matters; there does not appear to be any published case law on the subject.
The delicate line between individual freedom and unacceptable assertion
Within the framework of tattoo wearing in the workplace, the employer must thus take care of the individual freedom of each employee. However, it is obvious that the freedom to express one's opinions, whether within the company or in public, has its limits. Thus, the employer cannot be required to tolerate that a personal expression degenerates into a political statement propagated through the company's activities. The Luxembourg Court of Appeal in a November 30, 2017 decision (No. 44563), which however does not specifically concern a tattoo, had specified that the employee may not under the pretext of freedom of expression hold statements that are likely to undermine social peace or create a characterised trouble within the company.If the tattoo can therefore be fashion, as well as an affirmation or provocation, the employer and the employee will have to show common sense and mutual respect to avoid any conflict in the workplace.
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To be read also in the dossier "Ink carriers in the workplace":