BE WARY of all discrimination, warns Donna Reynolds
WE are all obsessed with appearance more than we would like to admit. We may claim to believe “beauty is only skin deep” but if that were true, the UK beauty industry would not be worth £17 billion and the UK diet industry another £2bn.
And let’s be honest,we are equally obsessed with the appearances of others. Take the televised election debates, where substantial airtime was dedicated to highbrow political discussion on the appearance of party leaders, the impressions voters might have consequently formed of them and how that might influence their vote.
The reasons for our obsession are plentiful and complex but the simple principle that appearance matters is undeniable. Whether we are looking at someone’s face, body or specific features such as height or hair colour, “what is beauty is good” and we infer positive traits from attractive faces. And if we accept (rightly or wrongly) that physical attractiveness is good, do we judge those we perceive to be unattractive to have less positive traits, for example judging someone to be lazy purely because they are overweight?
Why should this matter to an employment lawyer? Last month, Dr Sarah Jackson, of University College London, spoke out after conducting two studies into the physical and psychological effects of “fattism”.
Dr Jackson has called for the law to protect against weight discrimination in the same way as way as the Equality Act 2013 makes it unlawful to discriminate against job applicants and workers on the grounds of nine “protected characteristics” including age, sex and disability.
Examples of fattism include jibes, taunts, receiving poorer service in places such as shops and doctors’ surgeries, and being assumed to be stupid. If overweight job applicants or employees, or those considered “facially challenged” or less than attractive in some way, are disadvantaged at work (for example, being refused employment, passed over for promotion or bullied by colleagues) should the legal protection against discrimination be extended to include a tenth protected characteristic, namely “lookism”?
The difficulty is that age, sex and disability are objectively verifiable whereas attractiveness is extremely subjective. The majority of people may be able to agree when considering either extremes on the attractiveness scale, but not necessarily when asked to agree on those who might be said to fall somewhere in the middle. The other problem is that discrimination on any ground can sometimes be hard to detect – and often we’re not even conscious of our own biases.
One person who seems very aware is former Apprentice contestant Katie Hopkins, who reiterated in her TV programme, My Fat Story, that she would never employ an overweight person because they don’t create the right image and can’t work at the pace she requires. Similarly, what of the employer with a policy of keeping employees with a disability out of sight or out of customer-facing roles? Are such employers inviting a potential disability discrimination claim? You certainly wouldn’t want to, as the compensatory award in discrimination claims is uncapped.
While the law may not (yet) recognise fattism, the Equality Act does in fact offer some protection, though the behaviour complained of would require to be cited as, say, age or even disability discrimination to begin a claim. Take, for example, a business selling gothic clothing with a vacancy for a sales assistant in its high street store looking to attract applicants who they believe exemplify their brand and can help to attract new customers in their target market.
Its recruitment methods may well be based on discriminatory criteria (for example, a requirement to look young and grungy), meaning the unsuccessful applicant in their 50s and in a wheelchair, who wasn’t considered to fit the brand image, could have a claim under the Equality Act.
The best way to reduce the risk of any potential claim in respect of any protected characteristic, whether recognised by the law now or in future, is to recruit on the basis of carefully drawn-up job and person specifications which provide objective, measurable requirements. Remember to never judge a book by its cover – not if you want to avoid an expensive discrimination claim.
• Donna Reynolds is an employment partner with CCW Business Lawyers – www.ccwlegal.co.uk