Here’s looking at you

It cannot have escaped your notice that looks are becoming increasingly influential in recruitment and promotion decisions. [Employment law column from Law at Work in Summons Summer 2008]

Gradually, how you look is arguably becoming more important than what you can do in many organisations. It is said, after all, that you typically form an opinion about someone within seconds of seeing them.

Physical appearance is also being used as a (metaphorical) stick to beat colleagues with, as the recent case of Sarah Primmer illustrates. Primmer, who has red hair, worked for Mayflower Kebabs. She was treated to constant taunts about her “gingerness” by other staff and management alike and eventually resigned under this pressure. She claimed that a man would not have been treated to a similar onslaught of teasing.

In an excellent illustration of the new, recently-widened definition of harassment in the Sex Discrimination Act (SDA), she successfully argued that this sex-based (as opposed to ‘sexual’) harassment undermined her dignity at work and created an offensive and intimidating environment for her. Successful harassment claims under the SDA need no longer be based on sexual or suggestive conduct. As long as the victim is able to demonstrate that employees of the opposite sex would not be subject to the same humiliating treatment, then the employer will be liable for the behaviour of the harassers.

Interestingly, although Primmer’s case can hardly be said to be a green light for a flood of harassment claims in the Employment Tribunal based on hair colour, it does illustrate a new avenue for those who are teased about their appearance to seek legal redress.

Comments about a colleague’s appearance could constitute bullying if they are persistent and unwelcome. A recent House of Lords case (Majrowski v Guy’s & St Thomas’s NHS Trust) confirmed that the Protection from Harassment Act 1997 extends to workplace harassment – despite the fact that it was never conceived as employment legislation.

There is a serious general problem of harassment of disabled people – which is often based on their different looks. For example, the Disability Rights Commission has published revisions to its Code of Good Practice in Employment – one of which suggested that obesity, in some circumstances, might be regarded as a disability covered by the Disability Discrimination Act. This would have to be linked to a physical or mental impairment with a long-term adverse effect on the employee’s ability to carry out normal daily activities. But ‘morbid obesity’ is already legally recognised as a ‘disability’ in the USA. Persistent teasing of employees about their weight could, therefore, be contrary to the Disability Discrimination Act and the practice would be liable for the harasser’s actions.

Dress codes have got a number of employers into difficulties in the Tribunal. Whilst it may be reasonable for a practice to insist that, for example, smart business dress (or even a uniform) be worn where appearance is important in maintaining a corporate image to customers, it is important that insistence on dress standards does not become indirectly discriminatory. For example, a Job Centre worker was successful in arguing that the Department for Work and Pensions was applying their dress code (including the need to wear a tie) in a way that discriminated against men.

Provided the overall effect of the rules is the same for both sexes, dress codes will probably not be directly discriminatory, although they may indirectly discriminate against a particular racial or religious group. Some employees may not be able to comply with a dress code for these reasons, so it is important that employers are flexible about how such policies are applied in practice.

In order to reduce the risk of claims arising out of management decisions based upon appearance or harassment by fellow employees on the basis of hurtful remarks about appearance, practices should make it clear that unfair treatment on these grounds will be contrary to the organisation’s equal opportunities policy and partners and staff alike will be held accountable for their actions.

Ian Watson, Training Services Manager, Law At Work

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