When you run a business, it’s quite natural to want those on your front line to be able to connect with your customers.
From only putting “attractive” women on front of house, to only hiring millennials to work in your cutting-edge clothing store, rightly or wrongly, ideas about what’s relatable shape the demographic make-up of many workplaces. The reality is that in most cases, such practices will go unchallenged.
Despite this fact, and although some might believe selective recruitment to be justified, excluding whole groups of people from your workforce (or certain areas of your workforce) isn’t without legal risk. While you might have very set ideas about the kind of employee you want to represent your brand, employers must be mindful of narrow-minded attitudes giving rise to claims for harassment and discrimination.
In short, unless there is a “genuine occupational requirement” to hire someone of a particular race, religion, age or sexual orientation (or “genuine occupational qualification” in the case of sex and gender), then it’s wise to reconsider your criteria. Even if there is, in order to establish a justification defence, you must still be able to show that the requirement is a proportionate means of achieving a legitimate aim. Interestingly, it’s not just in the recruitment stage that these issues arise, as a recent case has demonstrated.
Hart v Birmingham Neoglory Ltd
The claimant in this case, Mr Hart, was employed by Birmingham Neoglory Ltd at one of its stores, “Amon”, where he worked as a sales assistant. The boutique, which sold handbags and other accessories, was owned by three individuals, one of whom had strong opinions about only wanting to hire women and gay men, believing they would have more of an affinity with the store’s target market. Mr Hart, who is bisexual, was made aware of this fact through a series of instances that occurred during his short two-month stint at the business, where he was encouraged to pretend to be gay to avoid losing his job.
Issues began just two days into Mr Hart’s employment, when his manager, Ms Tilney, was told by one of the store’s owners, Ms Price, that she should have Mr Hart fake his sexuality, as another of the owners, Ms Zhang, “does not like men working in the shop unless they are gay”. Adding weight to this theory, Ms Zhang did indeed ask Ms Tilney during a telephone conversation if Mr Hart was gay. Recalling Ms Price’s earlier instructions, Ms Tilney lied that he was, to which Ms Zhang responded “Ooo good, the boy seems OK”. Mr Hart heard Ms Tilney’s side of this conversation and was later told by Ms Tilney who was on the other end of the phone.
The following month during a face-to-face conversation, Ms Price told Mr Hart that Ms Zhang was not to find out that he was bisexual, as she “would not be able to process this” and “was only happy for gay men to work in the shop”. Ms Tilney was also given the same warning from Ms Price to “keep it shut”. “She wouldn’t understand it and it will only lead to one thing”, Ms Price told her, “he will have to go”. Again, Mr Hart overheard this conversation.
When Mr Hart stood in for Ms Tilney as acting manager for the store a month later, he became involved in screening CVs which were sent to him by Ms Price and Ms Zhang. During this time, he noted that Ms Zhang only ever sent over the CVs of female candidates, while Ms Price sent CVs from both women and men but made it clear to Mr Hart that he should prioritise female applicants in accordance with Ms Zhang’s belief that women and gay men were “more qualified” for the position.
This instruction troubled and offended Mr Hart, who felt that he and other prospective employees were being judged on sex and sexuality rather than capability. Coupled with a further instruction by Ms Price not to hire “coloured people” as Ms Zhang considered them to be “lazy, smelly, dirty b******s”, Mr Hart, who had friends from ethnic minorities, decided to bring a claim against the company for harassment, describing his experience at the store as “humiliating”.
Mr Hart, Claimant
Employment Tribunal
The Equality Act (EqA) 2010 prohibits unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee, or that violates their dignity. In deciding whether conduct has this effect, a Tribunal will take into account:
- The employee’s perception;
- The other circumstances of the case; and
- Whether it is reasonable for the conduct to have had that effect.
While a third owner was deemed by the Tribunal to be the ‘employer’ in this case, Section 109(2) of the EqA holds that anything done by an employee or agent acting on behalf of the employer (in this case, Ms Price and Ms Zhang) must be treated as also having been done by the employer themselves, regardless of whether they knew about or approved the conduct.
Ultimately, taking into account all the facts of the case, the Tribunal concluded that it was unlikely the unwanted conduct was done with the purpose of harassing Mr Hart. However, crucially, the Judge held that it “plainly had that effect” and “it is entirely reasonable that it would”. Interestingly, the Tribunal considered the remarks and instructions related to sex and sexuality to be significant but not as significant as those related to race.
In the judgment, Judge Tudor Garmon said: “It is not uncommon for people to believe certain types of shop, e.g. those selling ladies accessories or cosmetics, should be staffed by people who understand what women want, but there is absolutely no reason why an Asian or black woman or heterosexual man would have any less understanding than a white woman or homosexual man.”
James Tamm
Director of Legal Services
Expert Comment
The facts of this case are clearly unusual. However, it’s a good example of how, in a harassment claim, there is no requirement for behaviour to be targeted at individuals in order to attract liability. There is no suggestion that any abuse was aimed directly at the claimant, but the atmosphere created by the comments about sex, sexuality and race was offensive.
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