Employment Law Q&A – Can I compliment an applicant on their appearance?

Q: I am a recruitment consultant. I recently complimented a female applicant on her looks and said I thought this would be an advantage to her in applying for a particular role. I had intended this as a compliment, but she did not respond well to the comment. Should I be concerned about this?

A: It is generally safest to avoid making references to an applicant’s looks for a variety of reasons. Although your intentions may have been good, if the applicant is offended by your comment or wishes to pursue the matter, she may have a claim for discrimination and harassment. It is unlawful to discriminate or harass an applicant on grounds of their sex. A claim for discrimination may occur if the applicant is subjected to a detriment such as not being offered the role, or suffers injury to feelings. Sexual harassment occurs when an individual is subjected to unwanted conduct relating to sex that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. Even passing a compliment can amount to harassment, if it has this effect on the applicant.

Generally, a job applicant is entitled not to be discriminated against in the recruitment process. Highlighting an applicant’s attractiveness is likely to be seen as sex discrimination and harassment. It could therefore give rise to a claim against your employer and possibly even you personally.

There could also be issues for your end-user client as in some circumstances, where the applicant is treated as a contract worker and is supplied to work for the client, the applicant may be able to bring a claim for discrimination against them directly.

If you are instructed by your client to hire an “attractive” client, the applicant may have claims against both your employer for discriminating against her as an applicant and your client for instructing you to discriminate.

In summary, it is best to avoid any references to physical attributes of applicants, even if asked to shortlist applicants on this basis. Selection criteria should usually be based on objective criteria such as skills and experience, though of course other factors such as personality fit and profile will also be relevant, provided they are non-discriminatory.