Protections under the Equality Act 2010 are not only awarded to individuals once they become an employee of a company, but are also afforded to job applicants.
Recent news has brought attention to a job advertisement reported to have been published for a Shoreditch bar, in which they sought “extremely attractive” female waitress applicants who would be required to wear heeled shoes should they be successful.
The advertisement quickly drew mass attention and thanks to ‘twitter culture’ has become a topical and widely discussed public issue. Catching the attention of celebrities and the wider general public, public opinion has shown outcry to the “discriminatory advertisement”. Many are asking, how far does the Equality Act support in this scenario?
The Equality Act protects workers/prospective workers from discrimination due to nine protected characteristics, which are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. First and foremost, there is an argument here that to deprive male applicants of the opportunity to apply for this role would constitute a form of direct discrimination. Physical appearance however, is not a protected characteristic.
Whilst it is clear that the advertisement is subject to moral challenge and brings light to what may be the reality of some recruitment selections in the hospitality sector, the limitations of the Equality Act would not afford legal protection should someone not be considered attractive enough to be successful in this role.
There are some circumstances where employers can specify preferred applicant characteristics, for example in recruiting for an actor to play a middle aged, male character, it would not be a breach of the Equality Act to specify that applications should be male and within a certain age criteria. The caveat to this exclusion applying, would be contingent on the employer demonstrating that there is a genuine business need for applicants to meet those criteria to be considered for the role. Referring to the actor example, this would be satisfied.
In the absence of this genuine business need, employers would have little, if any, grounds to specify a preferred category of candidate for their role.
Advice to employers would be to hire staff based on merit and skill with no mind to an applicant’s characteristics, unless the role meets the threshold for the genuine business need exemption.
In this recent incident however, it would be hard to demonstrate that there was a genuine business need for a waitress to be female or attractive, which could give rise to claims under the Equality Act 2010 should a male applicant apply and be unsuccessful on the grounds of his sex.
Employers should take a no tolerance approach to discrimination in recruitment to avoid claims of this nature. As an employee/prospective employee, should you find yourself in a position where you have been denied an opportunity based on a characteristic protected under the Equality Act, we may be able to help. Please get in touch with one of our employment/discrimination specialists to see if we are able to assist, call us on 0161 696 6170 or complete our online enquiry form and we will contact you directly.
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