By Mark Ellis, founder of fixed fee employment law and HR specialists, Ellis Whittam
Clubs and bars across the UK have historically been the home of the beautiful brigade. Whether that’s intentional or not, in a year when we have a new Equality Act should they be more conscious of the potential of litigation? Yet there is a lot of research to show that attractive people are more employable, get higher pay rises and are perceived to be more likely to succeed in many fields than less attractive people. So, whatever we should do, it seems that some employers do discriminate against larger or less attractive people in their employment decisions.
So, is this the ugly side of permissible discrimination? Does employment law have anything to say on this issue or can employers carry on discriminating?
There is no explicit prohibition on size or attractiveness discrimination in the Equality Act or elsewhere. Nor is there ever likely to be. If there were, you’d have lawyers arguing over whether a claimant really was fat or just pleasantly plump and judges deciding that claimants were ugly within the meaning of the Act!
Being ‘fat’ doesn’t amount to a disability under the Equality Act. But could being ‘obese’? Surprisingly, there is no case law directly on the point. A disability is defined as an impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. DWP Guidance under the pre-Equality Act law did not treat obesity as an impairment in itself but did regard the consequences, such as serious mobility restrictions and breathing difficulties as being impairments within the Act.
It seems very likely that cases will arise in the future where obesity will be found to give rise to disability. That means that employers will be required not to discriminate against the obese in recruitment and to make reasonable adjustments to avoid obese employees suffering disadvantage. Severe disfigurement (as opposed to just being ugly) is also deemed to be a disability (though deliberately inflicted piercings and tattoos are not).
Generally, then, prejudice on grounds of someone’s looks is not caught by the disability provisions of the Equality Act. But there are lots of other ways in which discriminating against those we find unattractive can lead us into legal trouble.
To start with the obvious, if you appoint a man you find attractive instead of a better qualified woman who you think is fat and ugly, a tribunal is sure to find that was sex discrimination. If the woman you find attractive and whom you appoint is of your racial group while the candidate you think is ugly and you reject is of a different racial group, that’s probably racial discrimination. If you reject the large, masculine-looking woman in favour of the petite attractive one and the former is transgender, you are asking for a discrimination claim.
Again, if you were to dismiss an employee for being too fat, that would probably be unfair dismissal (though not if you could demonstrate a requirement for a necessary level of fitness which the employee could no longer meet despite time and help to do so – though you should rely on that reason, not “you’re fat”). Employees who are subjected to bullying or unpleasant remarks at work for their looks or their size might not have a claim for discrimination (unless gender, race, age or disability is what really lies behind the name-calling) but they could well have a successful claim for constructive dismissal against an employer that allowed that unpleasant atmosphere to persist.
Most of us, unless we are slim, highly attractive but talentless, would want to be judged on our abilities, not on our looks and, after all, treating people as you would like to be treated yourself is one of the secrets of keeping on the right side of employment law - and success in life and business!