The primary purpose of our sex discrimination legislation is to prevent a man or a woman being treated less favourably on the grounds of his or her sex – i.e. because he or she is a man or a woman. However, increasingly, we are seeing claimants use the sex discrimination legislation to try and claim that they have been discriminated against because of the actual physical differences between the sexes – i.e. because he or she has the body of a man or woman. This was recently seen in the Press when a man, Ben Sargeaunt-Thomson, claimed that he had been indirectly discriminated against by the National Air Traffic Services (NATS) because of his height.
NATS withdrew an offer of employment after health and safety inspectors ruled it would be “dangerous” for 6ft 10in Mr Sargeaunt-Thompson to sit at its desks. The Employment Tribunal heard that the desks were designed for 90 per cent. of the male and female height ranges, but someone as tall as Mr Sargeaunt-Thompson could develop joint or circulation problems through long-term use of the desks. Indeed, Mr Sargeaunt-Thompson had complained that his legs were too long to allow him to sit comfortably at the desks, and suggested alternative arrangements such as a kneeling seat. A claim of indirect sex discrimination was duly lodged by Mr Sargeaunt-Thompson on the grounds that only a man could be 6ft 10in tall.
The Employment Tribunal found in favour of NATS. It held that air control is a safety critical business and as such it was justifiable to require employees to undertake a display screen assessment. Mr Sargeaunt-Thompson has indicated that he intends to appeal the decision.
Is it lawful not to employ people because of their height?
It seems that employers can refuse to employ people based on their physical attributes if there are potential health and safety problems. However, the employer would have to show that its actions are a proportionate and necessary means, and that reasonable adjustments (having regard to resources, size of the employer etc) could not be made if such a defence is to succeed.
The Tribunal commented on the fact that there was no blanket ban by NATS on recruiting tall people, which suggests that a successful claim of indirect sex discrimination could be brought by a tall male against his employer in the right circumstances. Such a provision, criterion or practice could be indirectly discriminatory against men if it is not a proportionate means of reducing the risk of health and safety problems.
Furthermore, if an employee is dismissed purely on the grounds of his or her height, or other physical characteristics such as weight, the employee may well have a claim for unfair dismissal arising out of breach of the implied term of trust and confidence that subsists in all employment relationships. Terminating an employee because of his or her weight may also be a discriminatory act under the Disability Discrimination Act depending on the underlying cause of the person’s weight, but a discussion on this topic is outside the scope of this article.
In order to reduce the risks of employment related claims upon dismissal, an employer should ensure that the reason given for such termination is one of the statutory permitted grounds for dismissal – namely, capability, conduct, performance, redundancy or for some other substantial reason which justifies the dismissal (such as health and safety risk). Employers should also ensure compliance with the statutory dismissal procedures. Where there is a possibility of discrimination being claimed (i.e. sex, race or nationality, disability, religious belief, sexual orientation, or because an employee is engaged under a fixed-term contract or employed part-time) employers must consider whether the action is proportionate (for example, could any reasonable adjustments could be made to accommodate the employee) and be even more careful in ensuring that a fair procedure is followed; failure to follow a fair procedure (in compliance with the statutory regime) will make any such dismissal automatically unfair (provided that the employee has the requisite one year’s continuous service) and will cause a Tribunal to increase damages by between 10 per cent. and 50 per cent. As damages for discrimination are unlimited, such an uplift could be significant.
From 1 October 2005, the Sex Discrimination Act was amended by the Employment Equality (Sex Discrimination) Regulations which introduced a new definition of indirect sex discrimination. Indirect sex discrimination will now occur when an employer imposes an apparently neutral provision criterion or practice which applies to all staff but causes disadvantage to one sex when compared to the other and is not a proportionate means of achieving a legitimate aim. This brings the sex discrimination legislation into line with the more recent legislation prohibiting discrimination on the grounds of sexual orientation, religion or belief or fixed or part-time worker status. In addition, harassment on the grounds of sex and sexual harassment are now specifically provided for in the revised legislation.