Is it legal to employ only good looking staff ?

The French Watchdog Defenseur des Droits recently announced that they were investigating the Ohio-based chain store Abercrombie & Fitch over concerns that it was employing staff based solely on appearance. The chain which specialises in clothes popular with younger customers , is known for its dimly lit shop floors, loud music and attractive staff. Male employees ,known as “topless greeters” stand at the entrances of the largest stores, including the flagship stores on The Champs Elysees in Paris and London’s Old Burlington Street.

Dominique Baudis, the spokesman for Defender of Rights, said that solely employing handsome people not only discriminates against the aesthetically challenged but sends out the wrong message to those buying Abercrombie & Fitch’s products. Mr Baudis highlighted comments made by Mike Jeffries the Abercrombie & Fitch CEO : “We want to market to cool, good looking people. We don’t want to market to anyone other than that.” Mr Jeffries has also been quoted as saying he “doesn’t want larger people shopping in his store.” The chain has indeed been criticized for its sizing policy, the biggest size it sells is equivalent to a UK size 14.

In the U K under sections 39 and 40 of the Equality Act 2010 it is unlawful to discriminate, victimise or harass a person during the recruitment process based on any of the nine specific “protected characteristics” which are:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Indeed compensation in a discrimination case is uncapped and can include an award for injury to feelings.

Whilst Abercrombie & Fitch may not be acting unlawfully in terms of European Union discrimination law, their recruitment policy attracts a lot of interest for moral reasons and certainly leaves the company open to many potential legal pitfalls. For example , if a black person or an older person were not employed, as they were deemed not attractive enough they may be able to claim indirect discrimination on the grounds of race or age.

Abercrombie & Fitch is no stranger to controversy. In 2009 a law student called Riam Dean who has a prosthetic arm was awarded compensation of £8,000 by a London employment tribunal when she complained that she was made to work in the stockroom because she did not fit the brand’s “all-American” image. She was not allowed to wear a cardigan in summer to cover her arm as this breached the strictly applied “look policy”.  If another such case was brought the company may put their reputation at risk which could cause massive problems.

Whilst I appreciate the objections to a sizing policy and a recruitment policy excluding all but the physically blessed I can see no way of enacting legislation to make the lack of beauty ( such a subjective and amorphous concept) a “protected characteristic” in terms of Equality Legislation. That is going too far.

Employment Law 2013 – Some Key Developments

Employment law changes quickly and often.  This can make it difficult for employers and employees alike to know their rights and obligations on a given issue at a given time.  Here is a quick summary of some notable changes for this year:

Tribunal Award Limits – from 1 February 2013, the upper limit for an award by the tribunal for unfair dismissal is increased from £72,300 to £74,200.

Parental Leave – from 8 March 2013, this is increased from 13 weeks to 18 weeks.  Employees who are parents to take up to 18 weeks’ unpaid parental leave during the first five years of their child’s life.

Collective Consultation on Redundancy – From 6 April 2013, where employers propose to make 100 or more employees redundant at one establishment (within a period of 90 days), they require to consult collectively with employees or their representatives at least 45 days (down from 90 days) before the first redundancy.

Statutory Sick Pay – from 6 April 2013, the standard rate of statutory sick pay increased from £85.85 to £86.70 per week.

Statutory Maternity, Paternity and Adoption Pay – from 7 April 2013, the standard rate of statutory maternity, paternity and adoption pay increased from £135.45 to £136.78 per week.

The Enterprise and Regulatory Reform Act – passed by Parliament on 25 April 2013, this Act will include, among other things, various reforms to the employment tribunal system such as requiring claimants to send certain information to Acas so they can attempt a settlement before a claim is lodged.  The Act will also permit employers to have “protected conversations” with employees, which cannot later be reported to a Tribunal, with a view to terminating their employment in exchange for (probably modest) compensation.

Charges to Raise Employment Tribunal Claim – from 29 July 2013, employees taking their employer to Tribunal will have to pay an initial fee to issue their claim and a further fee if the matter cannot be settled and proceeds instead to a hearing.  Fees may be waived where claimants cannot afford to pay but otherwise the amount payable will depend on the relevant category of claim:

Category Initial Fee Hearing Fee
Level One (including unlawful deduction from wages and redundancy payment claims) £160 £230
Level Two (more complex matters including discrimination, equal pay and unfair dismissal claims) £250 £950
Appeal £400 £1200

Employee Shareholder Contracts – the subject of considerable debate within Parliament and the media, this new type of employment contract will see employees receive at least £2,000 worth of shares in their employer’s business in exchange for giving up certain employment rights such as being able to claim unfair dismissal (except for automatically unfair reasons) or statutory redundancy pay.  The employer will have to pay for the employee to take independent advice on an employee shareholder agreement.  The enacting legislation is expected to come into effect in Autumn 2013.

Employment law affects most of us at one time or another and at Mitchells Roberton we keep tabs on how it changes so we can be there to guide you across the shifting sands.