To what extent can a person’s looks be taken into account when recruiting them?

Posted by Amanda Okill

Senior Associate

I read with interest an article published on the BBC News on 18th August 2014 entitled ‘Should anti-tattoo discrimination be illegal?’

Use of the word ‘discrimination’ was not, in my view, unintentional. It questioned the status of  workers in the UK and raised the issue of whether those with tattoos should be protected under the Equality Act 2010 (the Act) which 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 .

This is 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.

As matters currently stand neither the sporting of a tattoo nor a person’s body mass index are, in and of themselves, protected by equality legislation. The Advocate General, in response to proceedings of discrimination issued in Denmark by a child minder who was severely overweight, concluded that severe obesity may, in exceptional circumstances, render a person ‘disabled’ and as such protected against discrimination under the European Equal Treatment Framework Directive (2000/78/EC). However, the fact of being ‘overweight’ is not.

In short, unless an employee’s appearance can be linked to a protected characteristic, an employer can object to it. The employer can, for example, insist on a dress code, stipulate standards to be maintained, and reject a prospective employee on the basis of their appearance at interview.

However, employers should be cautious in how they approach the issue. A person’s appearance is not necessarily unrelated to a protected characteristic.    Schedule 1, part 1 of the Act stipulates, for example, 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,’ (this being 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 reject a person with disfiguring facial burns from employment on the basis that they look odd, or may disturb the customers.

Interestingly, unremoved tattoos and bodily piercings are specifically excluded from the definition of ‘severe disfigurement’ under the Act allowing employers to reject applicants because of a tattoo or piercing on the same basis.

An exception to this exclusion would only be likely to arise in situations where the piercing or tattoo is the manifestation of a sincerely held religious belief and practice. 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.

There have, in recent years, been a number of reported cases of employees taking legal action against an employer for discrimination relating to appearance. However, the claimants only succeed in establishing discrimination where the appearance is linked to a protected characteristic. In 2009, for example, disabled student Riam Dean took her employers Abercrombie and Fitch to tribunal. Ms Dean who has a prosthetic arm, rendering her as disabled under the Act, claimed she was "diminished" for not fitting the "look policy" at the Savile Row store in central London. The tribunal awarded her £8000 for unlawful harassment. However, on the facts as presented to it, the tribunal did not uphold Ms Dean’s claims of direct discrimination.

It is correct that the assumptions based on appearance may be unfair and inaccurate. The BBC pointed out that in relation to visible markings, such as tattoos, the words ‘untidy, ‘repugnant’ and unsavoury were all used to describe the perception clients may gain of an organisation if someone decorated with tattoos was hired. These assumptions are very likely to be misguided and baseless. However, the law does not protect individuals from general assumptions others make about them.

Most employers have a dress code and would want employees to present in a manner which reflects the image they aspire to. This is not unlawful and an employer can ask its employees to present in smart or conservative dress. However, if someone presents with apparent differences in their appearance a prospective employer would be wise to consider why this may be the case, be it the relating to the person’s nationality, their religion, or a disability.  To turn them down without giving this proper thought could be costly.

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