You can’t even escape ‘lookism’ at the cinema – I saw the new James Bond film last week and overheard a conversation following the end of the film that went like this:
‘What you do you think of Daniel Craig as 007?’
‘He’s really good but he’s getting too old’
And that’s what this blog is about – judging someone by their appearance rather than their skill and talent. Indeed, it’s recently been reported that employers are more likely to offer jobs to those candidates they consider good-looking. On top of this, those with the benefit of good looks have also been reported as being more likely to earn more!
Whilst this impacts on most employment areas, it tends to appear most often in the fashion, retail and hospitality industries. The most common culprit being, what have become known as, ‘look policies’.
A look policy is similar to a dress code, save as for also specifying things like the clothes an employee should wear or an appropriate amount of make-up. Now, it’s already accepted that make-up policies can be sexist. Indeed, I did a blog on this topic earlier this year, which can be found here.
But is judging on appearance alone protected under UK law? Well, not directly. As weird as it sounds, having two equally good candidates in front of you but choosing one because you would prefer a candidate with blonde hair rather than brown hair is not illegal – however, whilst a policy like that would certainly benefit me, it’s not exactly sound business advice!
Another good example is the current lack of protection for candidates with tattoos, unless that tattoo happens to have religious significance.
However, should someone discriminate on appearance due to their perceptions of that candidates’ age, gender, race, colour, sexual orientation, religion, belief or disability, that’s a completely different matter. Employees are protected from discrimination under the Equality Act 2010 on account of the above, even where that perception is mistaken.
Let’s give an example. Let’s say that a fashion outlet wants candidates to be ‘youthful’, i.e. between 18-25 years old, despite their customers mainly being in their thirties and forties. They advertise for a position and Matt, who has the misfortune of looking a lot older than his 23 years, is rejected for not being youthful enough. In this case, it is the employer’s false perception of his age through his physical appearance that is discriminatory, despite the fact that he fits into the criteria they are looking for. Matt would have a potential age discrimination claim against the company in question.
The case brought against the BBC by former Countryfile presenter, Miriam O’Reilly, was an interesting case of ageism. In cases of alleged age discrimination, an employer can potentially defend its decision to discriminate on grounds of age if they can prove that to be a proportionate means of achieving a legitimate aim. In this case, the BBC argued that the replacement of Miriam O’Reilly with a younger presenter was justified by their aim of attracting a younger audience to Countryfile. However, the tribunal did not accept that choosing younger presenters was necessary to appeal to a younger audience and found in Miriam O’Reilly’s favour.
My personal view? Well, my advice has always been simple. Hire the best candidate for the job rather than the person who fits a pre-conditioned image. At the end of the day, talent and ability will always be the most attractive characteristics in an employee…Find out more about Thomas Sutherland here.