However, some retailers have taken this approach to extraordinary new heights on their quest for staff who fit in with, or even enhance, their carefully managed image in order to project and maintain the “look” of their brand. Freeze-frame on that gorgeous, Adonis-like store assistant and his Aphrodite-like colleague who greet you at the door of Abercrombie & Fitch. Clearly, retailers like this have an aspirational and young target consumer base – so why is this all not perfectly reasonable? Well, in doing so, some retailers are skirting the edges of a chasm of employment law complexities. These include a minefield of potential discrimination implications which some retailers have already faced in court. Of course, hiring on the basis of good looks itself is not necessarily unlawful but discriminating on the basis of age, race or disability is. That is where things can get somewhat confusing and possibly contentious. To complicate matters further, recent legal developments from Europe suggest that obese staff may soon be entitled to greater legal protection against discrimination. So watch this space. While beauty may be in the eye of the “business-holder”, there is a careful line that must be toed in order to balance the needs of the brand image with discrimination law principles. Retailers therefore need to face the ugly truth of discrimination legislation and be live to the possible implications for their business. The Equality Act 2010 is now the main piece of legislation which protects job applicants, employees, other types of workers as well as consumers against discriminatory practices. It came into force in October 2010 and consolidated previous laws relating to discrimination. Only certain characteristics are “protected” under the Act. While “attractiveness” is not expressly covered the following characteristics are: sex, age, race, disability, religion or belief, gender re-assignment, marriage/civil partnership and pregnancy/maternity. Broadly, the law prohibits direct and indirect discrimination, harassment and victimisation because of a protected characteristic. Direct discrimination is “directly” treating someone less favourable because, for example, of their age. The high profile case of former Countryfile presenter Miriam O’Reilly against the BBC demonstrates the point. The tribunal found that the BBC had subjected Ms O’Reilly to direct age and sex discrimination. While television, like retail/fashion, might appear to be an environment where one’s image can legitimately predicate their fit for the job, the Employment Tribunal absolutely did not agree. Normally, in practice, discrimination occurs more subtly than that – an employer may find themselves indirectly discriminating by the way that they operate their policies and practices; which puts certain groups of people at a disadvantage. In 2009, Abercrombie & Fitch infamously lost such a claim when its “Look Policy” clashed with an employee with a prosthetic arm who was banished from the shop floor to the store room. Similarly, many businesses have been rapped over the knuckles because their dress codes mean that individuals cannot look or dress a certain way which reflects their religious belief: remember the BA flight attendant who won her religious discrimination claim because she was prevented from wearing her crucifix?
What’s the big deal?
Discrimination legislation is pervasive, covering all aspects of the recruitment and employment “life-cycle”, from the point when your business places an advertisement for a role to the day employment terminates and even to a limited extent after termination of employment too. So for example, if an individual was not hired or if indeed they were fired because they did not fit the criteria which fulfilled a brand ideal – like being youthful, energetic or wholesome – looking – it is feasible that the individual could claim unlawful direct or indirect age, race or disability discrimination against the business. There are limited defences available to employers, including objectively justifying direct age discrimination and indirectly discriminatory practices. This is a notoriously high hurdle to achieve and it is unlikely that an employment tribunal will look favourably on a justification requiring staff to have a particular outward appearance, as this does not directly affect their ability to do their job. When it all goes wrong, consequences can be dire. The legal fall-out is bad enough; uncapped claims before the Employment Tribunal or civil courts and potentially enforcement actions being brought by the Equality and Human Rights Commission. But the impact is wider than this and can include negative publicity, a disillusioned workforce and disenchanted customers. So it is better to take preventative steps than to manage a crisis. So to use the law to your full advantage retailers should:
Check internal policies and procedures to make sure they are not unintentionally discriminatory – any policy which seeks to require a certain “look”, especially if this is based on physical attributes, may be a hostage to fortune;
Ensure job specifications and application forms provide for objective, measurable requirements which are not discriminatory (e.g. proportionate qualifications), rather than subjective factors (e.g. being “well groomed” or “dynamic”);
Not make commercial decisions, such as whether to recruit an individual, because of a protected characteristic and keep notes of interviews in case you are required to justify a certain decision in the future;
Monitor your workforce to maintain equal opportunities best practices and identify barriers to workforce equality and diversity; and
Promote equal opportunities and diversity by increasing staff awareness with training and increasing customer awareness through your websites and marketing.
Clearly the law affords a high level of protection against discriminatory practices. In a nutshell – it is about embracing principles of equality law and adapting your business to meet the needs of a diverse population; creating a rounded workforce and happy customers. This makes good business sense. The message is that retailers need to face the ugly truth of discrimination. Given current employment legislation, decisions of the employment tribunal and the direction of travel with regard to the views of society generally, retailers should tread cautiously when it comes to making recruitment decision based on fulfilling a brand ideal with an eye to outward appearance. Keep your policies and practices under review – the risk of liability is a real one. Carl Richards is employment partner and Gina Unterhalter is an associate at King & Wood Mallesons.
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