It is important that your client has stopped to ask this question as the applicant is correct in their assertion that severe disfigurements automatically qualify as a disability under the Equality Act 2010. Although there is no further explanation on what qualifies as a ‘severe disfigurement’ large birthmarks are widely considered to fall into this definition, especially if they are located in a visible area.
With this in mind, it is vital your client ensures the applicant isn’t subjected to any detrimental treatment as result of their birthmark. After all, the Act states that there is no obligation for the individual to prove that a severe disfigurement has a long-term and substantial impact in order to raise a claim for disability discrimination.
Therefore, your client should consider their approach when proceeding with the recruitment process. Naturally, it would it would be unlawful to reject the individual’s application due to any pre-conceived ideas relating to their appearance. Instead, applications should be reviewed fairly and decisions on who to invite to an interview should be based on a pre-determined checklist of skills and experience.
If your client does deem the individual suitable for the interview stage then they should again ensure discussions are fair and non-discriminatory. The charity Changing Faces recently released useful guidance for employers during this process, encouraging recruiters not to fixate on a candidate’s disfigurement or ask any inappropriate questions. Your client should also look to have multiple interviewers present to avoid the risk of unconscious bias influencing the hiring decision.
If your client does select this individual for the role then their responsibilities do not stop here. In fact, for the duration of their employment your client should endeavour to prevent them suffering discrimination at work, including introducing reasonable adjustments where necessary.
Whilst equality and diversity policies offer a great foundation, there will always be a risk that the individual may suffer harassment at the hands of colleagues or third parties as a result of their disfigurement. With this in mind, your client should take a zero-tolerance approach to any complaints of this nature and refuse to accept ‘banter’ as a legitimate excuse. Placing staff on diversity training as part of their inductions can be an effective way to discourage inappropriate behaviour and line managers should be on the lookout for any transgressions.
Ultimately, your client should consider the applicant’s disclosure carefully and adapt their approach accordingly. This will ultimately reduce the likelihood of the individual submitting a claim with an employment tribunal if they feel they have been treated unfairly due to their disfigurement.
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