Can you refuse to employ someone because of the way they look?

25th September 2014

Amanda Okill

Tattoos may be more popular than ever but employers can dismiss workers or turn down a job applicant for sporting them.

With an increasing number of employees losing their jobs or being rejected because of their body modifications, some are now calling for protection under employment law. So to what extent can a person’s looks be taken into account when recruiting them?

“It may not be as cut and dried as it seems,” says employment law specialist Amanda Okill. “A recent article on BBC News entitled ‘Should anti-tattoo discrimination be illegal?’ posed an interesting question about the status of workers in the UK and whether those with tattoos should be protected under the Equality Act 2010 (the Act).

“It’s not a million miles away from the recent debate on the legal status of obese people and whether they should be protected from discrimination because of their size. Both issues question the extent to which the law should protect employees from prejudices based on appearances,” says Amanda, an Associate at leading south east law firm Furley Page.

As the law stands, neither the sporting of a tattoo nor obesity are protected by equality legislation – but Amanda warns employers to be cautious on how they approach the issue.

She says: “The Act prevents discrimination on the basis of ‘protected characteristics’, including age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. So in short, unless an employee’s appearance can be linked to a protected characteristic, an employer can object to it.

“However, a person’s appearance is not necessarily unrelated to a protected characteristic and this is where employers have to be careful. For example, the Act states that a severe disfigurement is to be treated as having ‘a substantial and adverse effect on a person’s ability to carry out ordinary day-to-day activities’ (the definition of disability), even if, in reality, the employee can function perfectly normally on a day-to-day basis.

“This provision would mean that an employer could not refuse to employ a person with disfiguring facial burns just because of their appearance.

“Interestingly, tattoos and body piercings are specifically excluded from the definition of ‘severe disfigurement’ under the Act but an exception to this could arise where the piercing or tattoo is the manifestation of a sincerely held religious belief and practice,” adds Amanda.

“In this case, the employee could assert their religion as the ‘protected characteristic’ and the rejection of them as a job applicant on this basis as direct discrimination.”

In recent years there have been a number of reported cases of employees taking legal action against an employer for discrimination relating to appearance but claimants have only succeeded where their appearance has been linked to a protected characteristic.

In 2009, for example, disabled student Riam Dean took her employers, Abercrombie and Fitch, to tribunal after claiming that she was ‘diminished’ for not fitting in with the Savile Row store’s ‘look policy’ because she had a prosthetic arm, which rendered her as disabled under the Act.

The tribunal awarded her £8,000 for unlawful harassment but did not uphold her claims of direct discrimination.

“Assumptions based on appearances may be unfair and inaccurate and very likely misguided and baseless – as the BBC article pointed out, things like tattoos are often perceived as ‘repugnant’ or ‘unsavoury’ – but the law doesn’t protect individuals from general assumptions others make about them,” says Amanda.

“Most employers have a dress code and want employees to reflect a certain image, particularly if they are dealing directly with customers, and this isn’t unlawful. However, if someone does turn up for an interview with apparent differences in their appearance, a prospective employer would be wise to consider why this may be the case, be it relating to the person’s nationality, religion or a disability.

“Turning them down without giving this proper thought could be very costly indeed.”

For more information and advice on employment law issues, contact Amanda Okill on 01227 763939.

Notes to editors:

Amanda Okill is recognised by independent legal guide Chambers UK as a leading individual in employment law. The Guide also says Furley Page’s employment team ‘provides commercially sensible advice’ and is particularly singled out for its work in the education sector. Team leader and partner Andrew Masters, personally ranked at band one, is classed as ‘first-rate’ by sources and a lawyer who ‘is easy to approach and accessible, and speaks in plain English’. The team is also recommended by The Legal 500 guide.

 

 

 

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