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Not the right look for Abercrombie & Fitch … allegedly

Riam Dean’s case against the American clothing company Abercrombie & Fitch caught my eye this week. Last summer she had a holiday job working as a shop assistant at the Savile Row branch of A&F.  She alleges she was told to leave the shopfloor and work in the stockroom, for not complying with the company’s strict “look” policy.  Her crime?  She was wearing a white cardigan.  Apparently (and this was all news to me) A&F have a very strict policy on the appearance of their staff which doesn’t include white cardigans it would seem.  This however, wasn’t a claim under the Employment Equality (Prevention of Discrimination to Cardigan Wearers) Regulations, which have yet to be promulgated.  It was instead a claim under the Disability Discrimination Act because Riam wore the cardigan to disguise her prosthetic lower left arm.  She was self-conscious about the join between her arm and the prosthetic at the elbow. She says she had previously been given special permission to wear the cardigan.  The case is ongoing at the moment, the ET hasn’t decided whether to accept her allegations or not and it will be interesting to see the result.  However, if her allegations are upheld it will be a shameful episode for A&F. 

I would anticipate that she is claiming direct discrimination under the DDA.  S.3A of the DDA 1995 provides that

3A(1) For the purposes of this Part, a person discriminates against a disabled person if -

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
(b) he cannot show that the treatment in question is justified.

In order for a person to be able to claim that they are disabled within the meaning of the DDA they have to jump through a complex series of tests in order to qualify. S.1 defines disability thus;

s.1(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

However, there is an exclusion for people who are “severely disfigured”: Schedule 2 para 3(1) they can be deemed disabled without having to satisfy the above test;

An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.

Rian’s left arm probably counts as a severe disfigurement and I will await the full case report (if published) to see whether A&F took any points on this. From what I have read there was nothing to suggest that she could not physically do the job.

If she is successful she will be able to claim for injury to feelings as well as her economic losses, although if it was only a holiday job (she is a law student) those will be limited.  There is no qualifying period of employment required before being able to bring a claim under the DDA (unlike with unfair dismissals where 12 months continuous employment is required). 

The case also caught my eye because it reminded me of a friend who was recently told by her boss to cover up her arms, because the severe psoriasis she has on them, might put customers off. I should say she doesn’t work for A&F.  She was very upset, to say the least, and we discussed at some length what her rights were and what she ought to do.  She is still mulling it over. 

But back to Riam’s case, for more commentary on it have a look at the Daily Telegraph’s coverage – http://www.telegraph.co.uk/fashion/fashionnews/5637449/Abercrombie-and-Fitch-worker-with-prosthetic-limb-left-shattered–says-her-mother.html   and also take a look at Usefully Employed’s post on the same case http://blog.usefullyemployed.co.uk/2009/06/25/abercrombie-fitch-disability-row/

posted by

Michael Scutt

Michael Scutt is a Partner in the niche employee law practice Dale Langley & Co based in the City and Canary Wharf.

Michael advises clients, both employees and small businesses on all aspects of employment law, including issues concerning discrimination.  He is particularly interested in disability discrimination and occupational health issues.

Michael writes a successful blog dealing with employment law and related  issues. He is interested in web 2.0 and social networking as a way of building new business

 

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