Hiring staff for the way they look could be discriminatory

Nigel DuPree
Member - 59 posts

Dear Kuang Lim,

Discrimination 'is in the eye of the beholder' or victim in this as well as any other case where an individual "feels" discriminated against in terms of being treated unfairly or judgmentally with less than equally opportunity regardless of looks, colour, creed, being vertically or horizontally challenged, wairing glasses, having a bad hair day, poor choice of tie or handbag that day whas-eveeeer.

Hiring staff requires a professional balanced non-judgmental approach and the days of the local public house landlord with a roving eye or anyone else selecting staff on the basis that the wench is well built and has the biggest arms for pulling pints consistantly over a long shift is no longer acceptable.

However, that may have to be balanced with health and safety and the above staff member may be safer traveling home late at night no don't go there just book a taxi.....

Nicholas Batten
Member - 13 posts

Discrimination is not "in the eye of the beholder". Discrimination is what the law says it is. So Kuang Lim's question remains valid and unanswered - What piece of discrimination legislation specifically prohibits hiring or not hiring someone for the way they look. If, as I think, we are talking about genral appearance here - whether they wear a suit or not, whether they are scruffy or smart - not colour, gender etc.

Irene Farrar
Member - 2 posts

Hi,
I've been asked to look into CRB and Credit checks on our employees who have access to customers' credit card details when they order our goods. Reason being, imminent changes in legislation. Can't find anything on the FSA website and the CRB site only seems to refer to working with children/disadvantaged adults. Anyone come across this? What are the implications of checking on existing employees?

Nicholas Batten
Member - 13 posts

The implications could be very serious and I personally have not come across any mention of changes to legislation connected with what you mention. I would have thought running, or attempting to run, such checks without consultation or consent could leave you open to some sort of civil action for violation of privacy/human rights etc. I could be entirely wrong but I think caution is the watchword here. I would be interested to know what others think.

Nigel DuPree
Member - 59 posts

The law states that if an individual "feels" that they have been discriminated against because they are or are not 'eye candy', are or are not vertically or horizontally challenged or disabled and have been judged other than on their qualifications and/or compitencies to perform whatever task required of them as an employee then their complaint is valid and will have to be defended by or justified by the individual or employer.

Just the same as if someone "feels" put-down or deminished by threatening, harrassing, teasing banter or bullying behaviour has the right to feel that they have been victimised or unjustly dealt with in some way and does not mean that they are over sensitive or silly and should not take action.

CRB checks are primarily there to ensure the person is the person they say they are and provide information on their criminal record, if any, in the last five years and only discloses offences of a sexual nature (List 99 Sex offenders register) should you ask for an 'enhanced' CRB check where the individual may or will be in contact with vulnerable people especially children.

In addition, should people be working with or handling information subject to the Data Protection Act 1998 it would be reasonable for an employer as part of their risk assessment , if not wishing to be found negligent for employing someone with a history of credit card fraud or particularly poor finacial record in terms of having more county court judgements than hot meals.

Therefore if you are "looking into" CRB & finacial screening checks it would and should be a good idea for management to consult with employees if not already part of an existing recruitment policy and clearance process as this may in affect be a change to terms and conditions of employment.

Martin CMIOSH
Member - 5 posts

Nigel, I disagree with your premise in the first paragraph. My understanding of the law is that it is only illegal to discrimate in terms of skin colour, ethnicity, religion, disability, gender & age. There is also the (much discussed) Human Rights Act where an individual may claim that their fundamental rights have been imposed upon, but this is not a realistic legal argument (at the present time).

The process of employing someone is all about discrimating one candidate against another. But this is on legal terms i.e. you CAN discriminate between the qualifications and experience that candidates have. Similarly you can discriminate between how candidates dress, talk and act at an interview.

The Barister quoted in the article is claiming that the way someone dresses, or if they are obese, it is equivalent to sex discrimination. This is really fictional and, although our legal system would allow someone to make a claim on these grounds, there is no case law to support his argument. It would be very interesting to hear a legal argument that proved women were naturally fatter than men.

James Fairchild
Member - 171 posts

Nlgel, I also disagree. I think you're getting confused between Inequitable treatment, and discrimination.

As far as I know, discrimination must be on one or more of the specific grounds.

We had another thread recently, where I brought up the example of Abercrombie & Fitch, who have a policy of only employing attractive young people.

James Fairchild
Member - 171 posts

But surely "fatness" exists in both men and women in equal proportions? Looking around on my train this morning, I would say it does.

Daniel Sweeney
Member - 7 posts

We all discriminate routinely in our day to day lives. The problem is that we assume that the law has some natural correlation with principles of justice and rationality. The law doesn't prohibit discrimination on the grounds of aesthetic preference, QED its ok to discriminate on those grounds.
Oh dear oh dear. There is probably a reason why the Equality Commission and the CEHR in GB has a duty to review the legilslation and make reccomendations for change if this is the level of decision making that goes on in employment. Why not assess on the basis of capability without reference to what amounts to irrational prejudice?