Is it discrimination to refuse to hire someone because of their appearance?

US car salesman Andy Elliott recently came under fire for saying in an Instagram video that “if you don’t have abs, you don’t work for us”. The businessman openly claims that he only hires people with ‘six-packs’ because it shows him a level of routine and discipline.

This might seem outrageously discriminatory. But it turns out that even in the UK, legal protections around hiring decisions only go so far.

In a study of 1000 UK employers by Greene King, over half of them admitted they had chosen not to hire someone because they didn’t like the way they looked.

The question is: is it actually illegal not to hire someone because of their appearance? Well, it’s a bit of a grey area in HR, so let’s clear some things up…

Firstly, what does the law say?

Under the Equality Act 2010, treating someone less favourably because of a reason relating to a protected characteristic is discrimination.

There are nine protected characteristics under this law:

• Age
• Disability
• Sex
• Sexual orientation
• Race
• Religion or belief
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity

Discrimination can happen directly or indirectly.

For example, let’s say a business doesn’t hire someone because of their sexual orientation. This has clear grounds for direct discrimination.

However, businesses may also discriminate indirectly without realising. For example, not making adjustments for someone during a recruitment test when that person has said they have a disability. And then, not giving them the job because they “failed” the test.

Can you legally refuse to hire someone because they have tattoos or piercings?

It’s unlikely you would be liable for discrimination if you chose not to hire someone because they have tattoos or body piercings.

Many would consider this to be discriminatory. However, if the person’s tattoo or piercing is just part of their style and self-expression, there wouldn’t be legal protection for this.

However, there are times when refusing to hire someone with tattoos or piercings could be discriminatory. It depends on the reason behind the tattoo or piercing. For example, someone might have a tattoo as a sign of their religious faith. Some piercings can also be part of a religious tradition, like nose rings can be a symbol of marriage in Hinduism.

So, it’s important to be careful not to make snap judgments.

Can you legally refuse to hire someone because of the way they dress?

Again, someone could accuse you of discriminating if you don’t hire them based on how they dress. But this depends.

You are within your rights to have a dress code policy. But you have to make sure your policy doesn’t discriminate and applies the same standards equally to men and women. Then, you can legally ask staff to dress a certain way for work.

However, if you want people to turn up for interviews in smart dress, it’s worth clarifying this when you invite them for the interview. A job applicant still has the right to bring a discrimination claim against you if they feel they’ve been treated unfairly.

Otherwise, your interviewee could have the excuse of saying they didn’t turn up in smart dress because they weren’t told they had to. Whereas if they ignored your request, you may have more of a fair reason to reconsider them for the role.

But even if someone does turn up in casual wear, it’s important not to make assumptions. Ultimately, your final decision on a hire should come down to their skills, experience, and suitability for the job. Letting looks cloud your judgment could mean you cast away some really promising talent.

Can you set a standard of how people should look in your workplace?

By law, it’s acceptable to have a minimum criteria for how you want your staff and interviewees to present themselves. It just needs to be fair and have a valid reason.

For instance, you should ask yourself:

• Why do you want to have a dress code?
• Does your business genuinely need a dress code? (E.g. for health & safety purposes or as part of your company image)
• Will your dress code apply equal standards to all staff regardless of sex?
• Could your dress code cause any health & safety issues?
• Could your dress code create religious discrimination? (E.g. restricting certain clothing/hairstyles).

How can you protect yourself from discrimination risks?

You can also cover yourself by having a dress code policy that clearly lays out expected standards of appearance. It’s important however, not to be too strict. Certain restrictions may not be discriminatory by law. But giving staff more freedom to express themselves in how they see fit will also help morale and retention in the long run.

If you have concerns about potential discrimination risks in your recruitment and workplace practices, you may find the following resources useful:

·       Understand what counts as direct discrimination and indirect discrimination

·       Advice on how to avoid discrimination in dress codes

·       Advice on how to carry out a successful job interview

And if you’d like to speak to an expert over the phone, just tap below to book in for a free advice call.