I am delighted to announce something of an exclusive for the Employment Law Advocates blog. Please click here to read the written reasons of the most famous (or rather infamous for Abercrombie & Fitch) employment tribunal case of the year. I would like to thank May Dean for providing me with a copy.

There is one finding of fact which is not strictly relevant to the case but nevertheless reveals a lot about the culture of the American store. One of the terms of a settlement with ethnic minority employees was to increase the level of diversity in its promotional material. However, the judgment notes that training slides shown to new staff have only been changed in order to increase the racial diversity of shoplifters.

Moving onto the law, I am most intrigued by the claim that Riam Dean lost, that of direct discrimination. The tribunal finds, at paragraph 49, that she was sent to the stock room by a manager who knew that she had a prosthetic arm, in circumstances in which an employee who did not have a prosthetic arm would have simply been asked to remove the cardigan she was wearing in breach of the look policy. However narrowly direct discrimination is defined in disability discrimination, this must surely qualify.

Apparently not, according to the tribunal. Their logic  is, firstly, that the comparator must be someone who would be believed to be reluctant to remove the cardigan and would therefore also have been sent to the stock room. The problem is that the tribunal does not make a finding as to how such a person would have been treated but instead considers the entirely different scenario of a person who refuses to remove it and is disciplined. There is no evidence that Riam Dean would have refused and she often wears no more than a band around her elbow. The tribunal completely ignores the crucial question of whether she would even have been allowed to work on the shop floor if she had not worn a cardigan.

Secondly, the tribunal says that being sent to the stock room is not necessarily a detriment because it might have been more upsetting for Riam Dean to remove her cardigan. This is an error of law as a detriment should be asssessed primarily from the point of view of the claimant. If she would prefer not to be sent to the stock room, and this is a reasonable preference, then a detriment is established. What this case shows is a marked reluctance by tribunals to make findings of direct disability discrimination, for fear of an appeal, even where there is a good chance of them being made out. However, I do not want to be too critical of the tribunal as they largely got it right and the overall outcome is a good one.