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Abercrombie & Fitch's 'Look Policy'

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The recent revelation that Abercrombie & Fitch’s ‘look policy’ includes strict guidelines on acceptable hairstyles throws into consideration the legal consequences of such policies. In short, policies like this can be legal, provided that they don’t breach any discrimination law.

There are nine protected characteristics under the Equality Act 2010; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Discrimination against an employee on any of these grounds is illegal and if a person succeeds in a claim for discrimination against their employer, there is no cap on the amount of compensation an Employment Tribunal may award. The protection against discrimination is not limited to employees; it covers other categories of worker as well as job applicants.

If an employer wants to have a dress code or policy in place, they must ensure that it is applied in a way that avoids unlawful discrimination. Imposing the same rule on everyone may indirectly discriminate against workers with a protected characteristic. The Equality and Human Rights Commission (EHRC) Equality Act 2010 Statutory Code of Practice contains the following example of indirect discrimination:

An employer introduces a "no jewellery" policy in the workplace. This is not for health and safety reasons but because the employer does not like body piercings. A Sikh worker who wears a Kara bracelet as an integral part of her religion has complained about the rule. To avoid a claim of indirect discrimination, the employer should consider allowing an exception to this rule. A blanket ban on jewellery would probably not be considered a proportionate means of achieving a legitimate aim in these circumstances. (Paragraph 17.40)

If a policy discriminates against workers with a protected characteristic, the requirement to stick to the dress code or policy will have to be objectively justified. If the policy cannot be objectively justified, the employer will have to make an exception to the policy to avoid a claim of discrimination.

Using the example above and further guidance from the EHRC’s website, if the employer provided healthcare services, and the ban on jewellery was to reduce the transmission of infection from one patient to another, then the policy could be objectively justified.

Abercrombie & Fitch has specifically allowed exceptions to the ‘look policy’ for cases of disability or religious reasons. If the hairstyle guidelines are found to discriminate against employees with another protected characteristic, the company will also have to make an exception for this group of employees unless they can objectively justify the requirement.

This is not the first time Abercrombie & Fitch’s ‘look policy’ has been brought to the media’s attention. In 2009, Riam Dean made a claim against Abercrombie & Fitch for disability discrimination. Miss Dean wore a cardigan to cover her prosthetic arm and was told that she could not work on the shop floor unless she removed her cardigan. As a result, she was made to work in the stockroom because wearing a cardigan was a breach of their ‘look policy’. Miss Dean was awarded around £8,000 for unlawful harassment for a reason relating to her disability, however the Tribunal did not find that Miss Dean had been subject to direct disability discrimination. According to a report on the BBC website, the Tribunal was satisfied that the reason for the claimant’s dismissal was “her breach of the look policy in wearing a cardigan…it could not be characterised as direct disability discrimination”. This case was decided before the Equality Act 2010 extended indirect discrimination to cover disability. If this claim was made today, the outcome could well be different.

Rhiannon provides legal guidance and advice on a variety of employment issues to a wide range of clients as part of the JCP Employment Protection Scheme. She takes an active marketing role within the firm and provides workshops on employment law and legal developments.

Rhiannon has experience working for public and private sector clients on a range of employment issues such as unfair dismissal, discrimination, TUPE and compromise agreements. She has particular expertise in the area of equal pay.