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Vanity Unfair

 A 22-year-old law student with a prosthetic arm has won a claim against clothing retailer Abercrombie & Fitch for unfair treatment relating to her disability. Neil Hodge reports

Analysis

Riam Dean has been awarded compensation which included £7,800 for injury to feelings following a claim made against Abercrombie & Fitch under the Disability Discrimination Act.

Dean applied for a job as a shop assistant at the company’s Savile Row branch. The company operates a strict “look” policy which stipulates what uniform should be worn and how long hair and nails should be. As the uniform at the time was a polo shirt and jeans, Dean was fitted for this and it was agreed that she could wear a cardigan to cover the link between her arm and the prosthesis. She was then later told to leave the shop floor and work in the stock room for not complying with the company’s strict “look” policy due to wearing the cardigan.

Julie Edmonds, employment solicitor at MTA Solicitors, says that the employment tribunal held that Abercrombie & Fitch had unlawfully harassed Dean for a reason relating to her disability.

“Whilst the tribunal was satisfied that her dismissal was a consequence of the unlawful harassment, it could not be characterised as direct disability discrimination,” says Edmonds. “The reason being was that the ‘look’ policy was applied and enforced in relation to all members of staff. Dean’s treatment and subsequent dismissal was as a consequence of unlawful harassment arising not from treating Dean differently from non-disabled associates, but in treating her the same in circumstances where it should have made an adjustment for her disability,” she adds.

Julian Goulding of Cheyney Goulding says that disability discrimination legislation differs from other discrimination legislation in that it imposes a positive duty on an employer to make reasonable adjustments to its premises and to its provisions, criteria, and practices to ensure that these do not put a disabled employee to a disadvantage over non-disabled associates. Failure to comply with this duty constitutes an act of discrimination. 

“In all likelihood, many employers and employees will not be aware of the existence and effect of this duty and consequences of breach by the employer,” says Goulding. “The effect of this ruling, and the publicity the case has received, will be to highlight this duty and emphasise the fact that it is not necessary for an employer to treat a disabled employee differently from non-disabled colleagues in order to commit an act of unlawful discrimination.” 

Kevin Poulter, employment solicitor and member of Disability Rights at Wake Smith & Tofields, says that “what employers should remember is that discrimination will not be tolerated however long the employee has been engaged—or even during the recruitment process. Dean had only worked five shifts before she resigned her position citing ‘bullying’ and harassment as she was forced to work in the stockroom. Still, this one off incident did not prevent the Tribunal awarding significant damages for loss of earnings and injury to feelings.

“It is essential for employers and employees that good communication takes place to understand what adjustments may be necessary and what expectations the employee may have,” says Poulter. “It is a responsibility which falls on both sides. What is reasonable isn’t only about cost however, even if in this case the adjustment was both simple and free.”

This article first appeared in LNB News on 4 September 2009

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