Too fat? Too cute? Too unsightly? Archaic excuses for dismissal
In an ideal world, we’d all like to work in a workplace that’s fair, transparent and legally compliant. However, recent cases for unfair dismissal have presented some employers as non-compliant, unreasonable or archaic at the very least.
In 2013, Dilek Edwards, a massage therapist from Iowa State, filed a lawsuit for unfair dismissal against her former boss, Charles Nicolai, and his wife Stephanie Adams, following her dismissal as a result of Nicolai telling his wife she ‘might become jealous’ of Edwards because she was ‘too cute’. The court overturned her claim in 2016, saying her ‘cuteness quotient’ couldn’t be cited as the basis for a discrimination claim, but an appeals court in 2017 overturned the earlier ruling.
Back in 2009, student Riam Dean won her case for wrongful dismissal against the US retail giant, Abercrombie & Fitch, because her prosthetic arm didn’t fit with the firm’s ‘look policy’. Dean had told A&F about her disability after getting the job and the company had agreed to her wearing a cardigan to cover the link between her prosthesis and her upper arm. The Tribunal claimed that Dean’s dismissal was a consequence of unlawful harassment arising ‘not from treating the claimant differently from non-disabled associates (in enforcing the ‘look policy’) but in treating her the same in circumstances where it should have made an adjustment’.
Body art and piercings are increasingly causing issues for employees and employers, especially given the recent YouGov poll which suggested a fifth of UK adults have tattoos, with those under 40 significantly more likely to have them. Under UK law, workers have no standalone protection under discrimination legislation for having a tattoo. Tattoos and body piercings are excluded from the definition of disability on the basis that they are not ‘severe disfigurements that are treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities’. However, while this doesn’t mean an employer should have free reign to discriminate under a blanket policy, some tattoos could unwittingly highlight generational or religious prejudice.
In 2015, a UK Employment Tribunal was the first to consider obesity as a disability in the case of Bickerstaff v. Butcher. Mr Bickerstaff worked at Randox Laboratories in Co Antrim where he was harassed by colleagues, in particular Mr Butcher, because of his weight. Comments such as ‘so fat he could hardly walk’ and ‘so fat he would hardly feel a knife being stuck into him’ were cited examples. The Tribunal unanimously decided that the claimant was disabled and upheld his claim of harassment. The judgment was especially notable as although the medical report suggested that the claimant’s health would have been improved if he had lost weight over a period of time, it didn’t seem to make a difference to the Tribunal that the claimant’s condition was self-inflicted and could have been improved. The important thing for the Tribunal was the impact of this condition on the worker, as opposed to the cause.
Weight discrimination is not just found in dismissal cases; recruitment discrimination is of concern too. A study last year led by the psychologist Stuart W Flint of Sheffield Hallam University asked participants to evaluate candidates for different types of jobs. Shown hypothetical CVs with photographs depicting fat and thin people, the participants clearly perceived men and women of average weight to be the most suitable for employment. Obese women were the least likely to be hired.
To avoid unfair dismissal claims, employers must ensure they consistently adhere to the Equality Act 2010 and communicate effectively when recruiting for a specific role to ensure that any requirements the role may have are made clear and transparent.
For more information or advice on dismissal claims, please contact Loch Associates Group.
Pam Loch is Managing Director of Loch Associates Group and Managing partner at Loch Employment Law. For further information please contact us at firstname.lastname@example.org or call us on 01892 773970 or visit www.lochassociates.group