I chose to take employment law this year on a bit of a whim – my medical law dissertation wasn’t going too well, I’d enjoyed the one day’s work experience I’d done in the employment department of a solicitor’s firm, and I kind of thought why not!? Surely, it couldn’t be worse than what I was already doing!
Five months later, that decision has turned out to be one of the best ones I’ve made in the last three years! Litigation surrounding dismissal, mandatory retirement ages, disciplinary proceedings and workplace discrimination – it’s directly applicable to everyone’s lives. I’m also hoping it will help me out at some time in the future!
The High Street Store and Anti-Discrimination
Two weeks ago I found myself asking my supervisor – a world expert on UK employment law, whether the anti-discrimination legislation meant that Abercrombie & Fitch couldn’t fire me if I got fat whilst working there. As many of you may know, Abercrombie employ ‘models’ to work in their shops as assistants, and generally, it is only good-looking people who are employed there.
To give you a broad picture of anti-discrimination law, there are specific protected characteristics in the legislation (sex, race, age, sexual orientation, religious or belief, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity). Any individual who brings a discrimination claim must select a ‘comparator’ in order to prove the discrimination e.g. a male in your job position if you are female and claiming sex discrimination.
Exceptions under Occupational Requirements
The legislation covers the entire ‘employment’ period from application processes to termination of the contract of employment. There are also exceptions provided for under ‘occupational requirements’ whereby the discrimination is regarded as justified.
Such a requirement must be absolutely crucial to the post and not merely one of several important factors. It cannot be a sham or a pretext either for an employer who is only trying to hire a certain kind of person. Key to this is that the requirement must be proportionate to achieving a legitimate aim.
An example of this would be an occupational requirement for someone of a particular race in order to satisfy the need for authenticity or realism for acting roles (e.g. a black man to play the part of Othello). Another example would be for a counsellor working with victims of rape to be a women in order to avoid causing patients further distress. Now, back to Abercrombie…
The Legal Wrangle
Quite evidently, it would be near impossible to argue that in order to be a shop assistant it is a crucial requirement of the role that the individual is a certain dress size, or looks a certain way!
Undoubtedly, huge corporations like Abercrombie and their team of lawyers would justify their rejection of an application, or dismissal of a ‘model’ on grounds other than appearance or dress size (and no doubt this isn’t the only reason why people get rejected or fired!) – but it was fascinating to learn that if a claimant (the person bringing the action) could tick off all of the ‘ifs’ of proof involved, they would have a successful discrimination claim on these grounds, and could recover compensation as a result.
Unfortunately, it just seems to be that it’s only ever young people, who are unfamiliar with the law, and lacking in funds to launch legal battles who find themselves in such unfortunate circumstance.