It was reported last week that Abercrombie & Fitch, the US clothing retailer is being investigated by the French human rights watchdog over claims that it hires only good-looking staff. An official claimed that the company appears "to base its recruitment methods on discriminatory criteria and particularly on physical appearance". While the outcome of the investigation won't be known until the end of the year, should retailers and other employers in the UK be concerned about this development?

Many organisations would argue that they wish to employ staff who embrace and reflect their brand image and, superficially, that sounds reasonable. Abercrombie & Fitch undoubtedly has a young, aspirational target market and some might consider the strategy of having bare-chested male assistants in-store to pose for photographs with young female customers a stroke of marketing genius!

However, in the UK there is the legal protection against discrimination for all job applicants, employees and other types of workers under the Equality Act 2103 (the "Act"). This restricts employers when it comes to their recruitment policies. Requirements for a certain type of person may be indirectly or, in extreme cases, directly discriminatory under the Act and therefore unlawful.

Only certain characteristics are protected under the Act (the "Protected Characteristics") and, as yet, "attractiveness" is not one of those characteristics. While beauty is in the eye of the beholder, it is not hard to see how a company's image and the "look" considered required to enhance that could tip over into unlawful behaviour. If someone was not employed because they did not fit the required criteria (say, for example, a requirement to look "young and wholesome"), an employer could be acting unlawfully as an unsuccessful applicant might cite race, age or even disability to found a claim under the Act.

There is a possible "occupational requirement" defence to direct discrimination claims. However, there must be a genuine link between the requirement and the needs of the job and the requirement for a certain characteristic must be a "proportionate means of achieving a legitimate aim". Examples include the need for an employer of a certain gender to protect the privacy and decency of service users or the need for someone of a particular race to take a certain part in a play.

As regards indirect discrimination, if an employer can objectively justify their otherwise indirectly discriminatory requirement then they will not be acting unlawfully. This involves balancing the business needs of the employer against the detriment to the individual. It is therefore unlikely that a tribunal would consider it reasonable for an employer to require sales staff with certain personal characteristics as this should not affect their ability to do the job.

Breach of the Act renders an employer liable to potentially unlimited compensation and untold costs in terms of negative publicity.

For example, in 2009 Abercrombie & Fitch found themselves in trouble in the employment tribunal when a disabled woman with a prosthetic arm claimed she was banished from the shop floor and made to work in the stock room in its Saville Row shop because her appearance did not fit the company's image and "Look Policy". She was awarded £8,000 for unlawful harassment.

Another possible angle which has been debated before, particularly in the USA, is discrimination against people who are overweight (or "fatism"). It is human nature to make snap judgements based on appearance and recently the controversial former Apprentice contestant, Katie Hopkins, voiced views that are probably not that uncommon:

"Would I employ you if you were obese? No I would not. You would give the wrong impression to the clients of my business."

The Employment Appeal Tribunal recently confirmed that if there is a medical reason for someone's weight gain they can be protected as a "disabled" person under the Act and a selection policy such as that suggested would be discriminatory. Ms Hopkins added that her ideal employee would look "energetic, professional and efficient".

This is a difficult area because discrimination can be very subtle and hard to detect, for example, is a requirement for a "well groomed" appearance reasonable or could it be argued this is in some way discriminatory e.g. on the basis of age?

All employers and particularly retailers need to be cautious when it comes to recruitment policies and putting these into practice - the potential for legal liability is real. While uniform policies can be perfectly legitimate, anything which goes further and sets out requirements for a certain "look" is potentially a hostage to fortune.

To avoid this, a person specification should be drawn up for each role and should provide for objective, measurable requirements rather than subjective factors. Notes of interviews should always be taken and kept in case the employer is required to justify a certain recruitment decision in the future.

Sources

Article - The Times: "Abercrombie & Fitch accused of hiring only best-looking sales staff"

Article - BBC News: "Woman wins clothes store tribunal"

Article - Management Today: "'Fat people are lazy', says Apprentice's Katie Hopkins"