An Employment Tribunal recently ordered Abercrombie & Fitch to pay compensation to an ex-employee who brought successful claims for wrongful dismissal, harassment, and a failure to make reasonable adjustments. £9,014 was awarded in compensation, the majority of which was for injury to feelings. 

Ms Dean, who was recruited to work as a shop assistant at Abercrombie’s flagship store in Savile Row wears a prosthetic forearm, which she informed Abercrombie of after being hired.  It was agreed that she could wear a cardigan to cover where her prosthetic limb joined her arm, however, she was then asked to work in the stockroom on the ground that the cardigan was in breach of Abercrombie’s look policy. 

In the industry, image is everything.  It is perhaps therefore not surprising that fashion employers wish to impose strict controls over the presentation and appearance of employees working in their stores and recruit accordingly. The press has reported that Abercrombie has a 45 page manual covering everything from hairstyles to toenail varnish and nail length.

However, the need to protect the brand through ensuring that staff project the right image, should be balanced against the damage caused to the brand by negative publicity resulting from claims.  In addition, whilst the compensation awarded in this case was fairly low, there is no cap for the amount of compensation that can be awarded for discrimination claims, meaning they can be costly.

Top tips for preventing discrimination claims when seeking to protect your brand

• When recruiting, ensure that any criteria that focus on appearance are directed to created appearance, such as, “preppy”, “edgy”, “smart”, rather than actual appearance such as “attractive”, “tall”, athletic.  In addition where possible stay away from criteria that are connected to age, such as “young”, “enthusiastic”,  or even “sophisticated”.
  
• Ensure that staff with management responsibilities have undergone training on discrimination and harassment, not only so that they are able to spot potential problems, but also to guide them on how to deal with issues sensitively, so reducing the chances of upsetting employees.  This should limit the prospects of a claim, as well as reducing the level of any injury to feelings award in the event of any successful claim. 
  
• Having policies in place on equal opportunities and being able to show that training has been carried out can help present the company in a favourable light should your organisation find itself in Tribunal.  Medium to large employers without such policies are likely to face criticism by Tribunals.
  
• In the realm of disability discrimination, an employer will not be under any duty to make reasonable adjustments if it does not know and could not reasonably be expected to know, that the person is disabled and is likely to suffer from a substantial disadvantage.  Ignorance will not be bliss, as actual knowledge of the disability is not required and employers will be required to look out for the signs and take reasonable steps to ascertain whether employees suffer from a disability. For example, where an employee has a poor sickness absence record employers should be asking questions about the causes to assess whether there is a disability.  Employers should also consider asking employees to complete a questionnaire documenting whether they consider themselves to be disabled once they have made offers of employment. 
  
• While it is important to generally enforce a policy in a consistent manner, a more flexible approach should be adopted in relation to cases of disability or allegations of discrimination on other grounds, for example, sex or race.