Matthew Brincat

Senior Associate, Ganado Advocates

As a Senior Associate within the Insurance and Pensions practice area, Dr Matthew Brincat leads the Employment Law practice within GANADO Advocates. He graduated with a Doctor of Laws from the University of Malta in 2001 and read for a Master of Laws in Labour Law at the London School of Economics and Political Science (LSE) the following year. Matthew's legal practice mainly revolves around employment and pensions – areas of law he believes connect both the human and the corporate aspects of legislation. He is also a director of EELA, a member of the Lex Mundi European Employment Practices Group, and delivers lectures about employment and pensions law on a regular basis.

Bring on the ‘ink’quisition: Can an employer ban tattoos or force employees to cover them?

Friday 20th May 2016

Following a recent publication in the Times of Malta, we are being asked on a regular basis whether an employer in Malta can have rules which regulate tattoos in the workplace.

It is a fact that tattoos are becoming more popular. In the UK for example, one in every five persons has at least one tattoo on their body, according to research cited by the British Association of Dermatologists in 2012. Although we don’t have exact figures for Malta, we have seen an increase in the tattoo culture over the past decade, as it slowly integrates into the social norm and is no longer solely linked to foreign sailors and gang members which people associated tattoos with 40 years ago.

This change in ideology brings with it new developments within the employment sphere: where does an employer draw the line? Should the line be drawn at all? The law is silent on this issue, and does not specifically regard the lack of access to employment or restrictions imposed by the employer due to body art as being discriminatory.

Current practice supports employers’ rights to implement appearance policies through dress codes in order to retain the company’s image, especially when the employee is client facing. As a result, it would generally be accepted that a worker in a restaurant kitchen with a visible tattoo is not an issue, but a visible tattoo on a waiter’s forearm or hand is simply not on.

So what does the law say about this? Well, the only employment law rule that one can use when feeling discriminated against within these circumstances is the definition of discrimination found in the employment and industrial relations act, which states that if something is ‘not justifiable in a democratic society’, it may be discriminatory.

So what is justifiable, you may ask. The truth is that there is no straight answer, and it’s always about a balance between the employer’s right to protect his business interests in a reasonable manner and the right of the employee to express himself freely, perhaps even by means of a tattoo.