In South African law, the courts have, in general, taken the side of the employee where an employment policy limits a certain appearance.
Employment law experts from Cliffe Dekker Hofmeyr said that South Africa does not have express provisions in the Constitution or the Employment Equity Act that prohibit appearance based on tattoo discrimination.
Therefore if challenged by an employer because a worker has a tattoo, the worker would need to base their claims on a listed ground.
“An employee would have to argue that personal appearance should be protected under freedom of expression or personal dignity,” said the legal firm.
The discourse around tattoos in the workplace has been sparked by recent comments from the minister of police Bheki Cele, who said that people with tattoos are not hired by the police force because they relate to people who are gangsters.
“When you have a tattoo, we don’t hire you because you have a tendency of being a gangster,” said Cele.
According to Cliffe Dekker Hofmeyr, tattoos are a mutable characteristic, meaning that they do not automatically qualify for legal protection and are commonly dealt with in an employer’s dress code and grooming standard.
South African courts have reaffirmed their commitment to values of dignity, freedom of religion, opinion and expression, and equality over restrictions on a person’s personal appearance, it said. This fact is highlighted by judicial decisions in South Africa, which have refused to follow the...
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