In a disability discrimination claim, the Employment Tribunal has to consider whether there was a provision, criterion or practice applied to a disabled employee which put the employee at a substantial disadvantage in comparison with a non disabled employee. It also has to consider whether the employers had knowledge that the employee was disabled and at a disadvantage and whether the employer had taken steps to prevent the disadvantageous effect for example by making reasonable adjustments.
Dian Ream was a student employed at one of Abercrombie and Fitch’s stores as part of the Impact Team who fill and maintain stock on the shop floor which involves working both on the shop floor and in the stock room. The employee did not mention her disability – she uses a prosthetic forearm – and Abercrombie and Fitch did not ask about disabilities during their recruitment process. Abercrombie and Fitch operate a ‘Look’ policy which store managers are required to enforce. The policy requires all employees to wear the key look clothing, requires tattoos to be covered and includes guidelines for make-up for women and states “we do not discriminate, and will not tolerate discrimination in hiring based on gender, age, race, color, religion, national origin, sexual orientation, marital status, veteran status, citizenship, ancestry or disability.”
Miss Ream was issued with a uniform and had been given permission to wear a cardigan to hide the join between her natural and prosthetic arms. One manager saw the employee on the shop floor wearing her cardigan and asked her to work in the stock room, saying that someone would replace her. Miss Ream did not point out that she had permission to wear the cardigan because she assumed the manager had been told and was shocked at being removed from the shop floor. The manager explained that had the employee been wearing excessive make-up, she would have sent the employee away to wash the make-up off before returning to the shop floor. The manager was aware the look policy could be adjusted if there was good reason, e.g. a pregnant employee could be given permission to wear maternity trousers instead of jeans. Another employee at this store with an uncovered tattoo was allowed to work on the shop floor in breach of the look policy.
The Employment Tribunal were satisfied that the look policy placed the disabled employee at substantial disadvantage in comparison with non disabled employees. It recognised that the employee felt no shame about her disability but was reluctant to draw attention to her prosthetic arm because she was concerned that customers might not be comfortable approaching her for assistance and favour a non disabled employee.
Abercrombie and Fitch’s management team had undertaken on-line diversity training on the company’s intranet but the Employment Tribunal found that none of those who gave evidence appeared to understand their legal duty to make reasonable adjustments for disabled employees.
The Employment Tribunal did not find that the employee had been directly discriminated against because of her disability. It found that a non disabled employee who insisted on wearing a cardigan or a long sleeved top under the uniform polo shirt would also have been removed from the shop floor. Therefore, wearing the cardigan was the reason for the employee being removed, not her disability.
The Employment Tribunal found:-
• the employee had been unlawfully harassed for a disability-related reason;
• the employer failed to make reasonable adjustments;
• the employee was not subject to direct disability discrimination;
• the employee was awarded compensation for wrongful dismissal, injury to feelings and loss of earnings each of which was uplifted by 30%.
The Employment Tribunal did note that the financial burden of making a reasonable adjustment should not fall on the employee. So Abercrombie and Fitch should not have required the employee to buy a cardigan herself but should have provided one.
If you have been discriminated against on the basis of a disability, please contact Ashley Hunt or Carrie-Ann Randall on 0116 212 1000 now or complete one of the on-line forms.
