Not enough cover from policy

The media gave a good deal of publicity a few months ago to the case of a student with the prosthetic arm who resigned from Abercrombie and Fitch after five days' employment and claimed discrimination. In some ways the coverage was misleading.

On most of her claims the student lost but she won on two counts: unlawful harassment and lack of reasonable adjustment.

On the face of it this was singularly unfair. It referred to one single incident, where a supervisor transferred the young woman to the stockroom from the floor because she was wearing a cardigan to cover her prosthesis. She had previously been told that she could wear it by another manager.

The background was that the retailer promotes a fit and stylish image and part of this is to insist that all staff meet certain appearance criteria. These include no beards except for religious reasons, only discreet tattoos and a fixed uniform which at the time included jeans and short sleeved T-shirts.

This was a condition of employment and supervisors were under strong compulsion to enforce it to the letter. The particular supervisor acted in a way that would have been acceptable with an able-bodied individual who did the same as Ms Dean. So, under the present law, she lost her indirect discrimination claim. However, the tribunal judge found that the firm's "relatively sophisticated policies on paper were not fully understood by managers, who tended to regard such things as the exclusive responsibility of HR".

In other words, it was the failure to embed the policy that damned the employer. The importance of the case is that it restated once again that it is not enough to have a paper policy.

The case for the employer may have been partly undermined by the fact that their staff induction film appeared to feature only white people; except for an section on shop lifting, where black actors appeared.