Discrimination law

Last month David Wright examined the growing group of workers protected from discrimination, this month he explores how to avoid making mistakes with both existing and potential employees.

Salon owners often worry about equal opportunity policies because it’s an area that seems to be constantly changing and few managers feel they have the experience to make confident decisions.

Employees, as well as applicants for jobs, are protected against unlawful discrimination. One of the biggest gripes among salon owners is that if a claim against them is received by a tribunal, it is up to the salon owner to demonstrate that they didn’t discriminate. The fact that there is no ceiling on the money a tribunal can award for discrimination makes these issues particularly sensitive.
 
When you advertise a vacancy and select an applicant, any unsuccessful candidates are free to claim at tribunal that they were unsuccessful due to discrimination. For example, a candidate who was asked if she intended to have more children at interview may feel this was a discriminatory question.
 
Set the parameters
It makes sense to ensure you have a full job description for the vacant post. Ideally you should also produce a candidate specification in which you can specify the skills, experience and qualifications you are looking for.
 
You can use this information to put together your advert. If the advert says applicants must be qualified to Level 3 and have two years’ experience of electrolysis then you only shortlist applicants with these attributes.
 
The advert is where it is easy to get into trouble. For example, many salons advertise for applicants who are “mature”, “committed” or “motivated”. 
 
It is always worth reviewing your advert criteria and also your interview questions and asking why is this relevant to the person’s ability to do the job. 
 
What is the desired answer to “where do you see yourself in five years?”, or more dangerously “have you got a boyfriend?” 
 
It’s also a good idea to protect yourself by keeping a record of why you chose the applicant you appointed and why other candidates were unsuccessful.
employment
Employers who got it wrong 
In most of the following examples, it is easy to see how the claims could have been avoided. Some employers were simply following their instincts but ignorance of the law is not a defence.
 
You probably read of the Muslim hairdresser who won her claim for discrimination after she claimed she didn’t get a job because she wore a head scarf. The salon owner saw it as essential that a hairdresser should show their hair and would have had the same opinion if an applicant wore a baseball cap.
 
The hairdresser was awarded £4,000 for injury to her feelings.
 
More recently a job centre refused to allow a salon owner to advertise for a junior therapist, the implication being that junior meant young. The job centre said that if the word junior didn’t imply young then to avoid the risk of a tribunal claim, why use it? 
 
You may view this as equal opportunities gone mad but a 54 year old was reported to have made over 60 claims of age discrimination, after having applied for posts that used the words “school leaver” or “recent graduate”. The implication was that these were for young people. While many claims were rejected by tribunals, other employers settled cases and paid thousands of pounds to him rather than go to tribunal.
 
Customers are also able to make claims if they feel they have suffered discrimination. Three teenagers with cerebral palsy were each reportedly paid £1,500 in an out-ofcourt settlement after they were asked to leave a salon because there was “no room for pushchairs” and told their appearance might scare other customers.
 
There are situations where an employee as well as a business may be liable for a financial penalty. One salon manager was ordered to pay the entire award of £25,000 to an employee for hurt feelings under sex discrimination.
 
The employee gave evidence of how she was bullied and discriminated against by the salon manager after she’d revealed she was pregnant. Her GP recommended a change in her working pattern but this was rejected. She also didn’t receive the correct maternity pay from the salon.
 
The above examples provide a brief overview to raise awareness, but there have been many other cases where, often unintentionally, salons have discriminated against their staff. For example, part-time staff get excluded from commission schemes or pregnant job applicants are advised to reapply after the baby is born. The employer’s intentions might well have been reasonable but this is no defence if a case reaches tribunal. In a changing legal landscape it is a good idea to review your HR processes, to ensure you don’t fall foul of the equal opportunities legislation. PB
 
David Wright is a consultant in all aspects of employment practice and law. He is the main employment law consultant for Habia and provides a personalised support service for UK salons. Tel: 01522 831061 www.davidwrightpersonnel.co.uk