Not the right look for Abercrombie & Fitch … allegedly

29 06 2009

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/

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5 responses

29 06 2009
Employment Law Advocates » Blog Archive » Riam Dean

[…] case at the moment. Instead, I refer you to my blogging colleagues, PJH Law, Usefully Employed and Jobsworth for their analyses. Like the Tribunal, I shall reserve judgment. My feeling is that this case […]

9 07 2009
graham findlay

I am a disabled person with specialist knowledge of the DDA from a consumer/rights perspective, and have set up a Facebook group: Support Riam Dean in her fight for disability rights.

My daughter is about the same age as Riam and has experienced disability hate crime, as well as disability discrimination under Parts 3 and 4 of the DDA 1995. So I speak from personal experience.

I hope the Facebook group will offer some support to Riam during this difficult time and will keep this vital issue in the public eye. Please take a look and read the many messages of support from across the disabled and non-disabled community.

Thanks you.

9 07 2009
graham findlay

I’m a disabled parent (and have reasonably specialist knowledge of the DDA from a consumer perspective) – and also have a disabled daughter about Riam’s age. I’ve set up a Facebook group to offer Riam some support during this difficult time. Please do take time to have a look at some of the messages of support for her from disabled people and non-disabled allies around the world.

For me this case centres around less favourable treatment particularly in relation to lack of dignity, which is certainly cited in the DDA Code of Practice for Part 3 (goods and services), if not Part 2. Employers need to be sensitive to how they manage disabled people equally – if not more positively – in relation to other staff.

We disabled people cannot change our appearance or impairments, and should not need , in a modern, affluent democracy, to cover up or hide away from the public gaze. And to me it is absolutely clear that conversely society at large must change to accommodate our rights as disabled people – the social model of disability in practice.

14 08 2009
Riam wins « Jobsworth by Michael Scutt

[…] Riam wins 14 08 2009 I was pleased to learn that Riam Dean, the law student who sued Abercrombie & Fitch for wrongful dismissal and unlawful harassment (because of her disability) won her case at the London Central Employment Tribunal.  According to The Independent today, she was awarded £7,800 compensation for injury to feelings, £1,077.37 for loss of earnings and £136.75 damages for being wrongfully dismissed.  It is reported that she did not succeed with her claim for “direct” disability discrimination which the ET thought was “not well founded”.   I would be interested to read the law report on this case, if it ever gets published, for the reasoning behind the decision. I’ve posted before on the case (click here). […]

21 08 2009
May Dean

Dear Mr. Scutt,

I am Riam’s mother and have just read your article on your blog, if you are interested in receiving the judgement please let me and I will send it to you. you might in the meantime wish to see some of her interviews such as the one on GMTV which was attended by an independent employment lawyer, in fact this interview is available on youtube.

Riam was interviewed also by ITN and BBC World Service, dozens of television stations wanted to interview her, but Riam wasn’t interested, she felt she won the case a long time ago, since she made A&F attend court and by refusing their settlement.

She always said I will never accept their money, as money only papers over the cracks, you cant put a price on human dignity.

We are very proud of our daughter, money was never the issue, it was the principal, something A&F should learn.

Riam has been looking after a group of 60+ kids during an activity week in a Charity called REACH for several years, some of those kids turned up in court with their parents in support. She said I will never be able to look those kids in the eye and encourage them in anything if I don’t fight my first battle in life. Please see below an article she wrote which was published in REACH magazine just before in incident with A&F.

Since the court date, Riam has received thousands of emails and messages of support on her facebook from all over the world.

“Disability”
It’s the stories of success in the face of adversity, which remind me to never stop dreaming,
When life throws me an obstacle, I turn it into a challenge,
So point out my weakness and I’ll show you my strengths
Tell me I can’t and I’ll show you I can,
Doubt me and I’ll prove you wrong
You’re only disabled when you give up trying,
When people doubt you and you start to doubt yourself,
Excuses are for people who say I can’t before even attempting.
In my eyes, you’re only as disabled as your mind,
Disability is not how other people see you, but how you see yourself
After all it’s ability not disability which counts.
When people ask me if I wish I had two arms, I reply
“I would be half the woman I am today”
Riam Dean

Kind regards
May Dean

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