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Discrimination Against Fat People in the Workplace: Is Legislation Now Required?

Discrimination Against Fat People in the Workplace: Is Legislation Now Required?

Discrimination of fat employees

A leading judge has suggested the only way to tackle discrimination against fat people in the workplace was through legislation.

In an academic paper, Philip Rostant, a judge specialising in employment law who is also training director for the Employment Tribunals of England and Wales, said such laws would prevent bias against those of “non-ideal weight“. Rostant and his co-author Tamara Hervey, a professor of law at Sheffield University, warned that fat people found it harder to get jobs, were paid less than thinner colleagues and at greater risk of being sacked.

A growing issue

Employers should be aware that the number of overweight people in the workforce is increasing. In 1993 about 14% of adults were obese, defined as having a body mass index of more than 30; that figure has risen to about 25% now. Projections by the World Health Organisation and UK-based researchers indicate that 36% of men and 33% of women in the UK will be overweight or obese by 2030.

Limits of Equality Act 2010

The paper by Rostant and Hervey points out that discrimination against people because of age, race, gender, religion, sexual orientation and disability are all outlawed under the Equality Act of 2010. However, they say the Act offers only a “very tenuous route for protection” because it is largely based on a “medical model” of disability: because overweight people are only protected if they can prove they are also disabled, they still fall victim to workplace discrimination. Currently, people who can show that their weight “creates a substantial functional deficit” can seek redress through UK disability discrimination legislation.

The authors state that people of non-ideal weight (and it is important to note that this includes the severely underweight as well as overweight people) “are subjected to discrimination in the workplace and elsewhere based on attitudinal assumptions and negative inferences from their membership of a group, such as that they are insufficiently self-motivated to make good employees.”

However in EU law, explain the authors, the direction of travel is away from this medical model towards a “social model” of disability. The social model of disability suggests that disability is the result of the way society is organised, rather than the outcome of a person’s impairment.

Assuming the UK remains in the EU, the authors believe UK law will have to change because EU law follows the United Nations Convention on the Rights of Persons with Disabilities, which adheres to the social model. “It seems to us that the UK cannot avoid at least a version of the social model for much longer”, say the authors.

Landmark ECJ ruling in 2014

Last year, a UK employment tribunal became the first to consider obesity as a disability following a ruling by the European Court of Justice (ECJ) in the landmark case of Karsten Kaltoft v Billund Kommune, in which the ECJ ruled that if the obesity of a worker “hinders the full and effective participation in professional life on an equal basis with other workers . . . obesity can fall within the ‘concept’ of disability”.

A Northern Ireland Industrial Tribunal in Bickerstaff v Butcher unanimously decided that the claimant was disabled and upheld his claim of harassment, following the ECJ ruling that said that if obesity hinders “full and effective participation” at work, it could count as a disability.

Recruitment bias

A recent Sheffield Hallam University study revealed 181 recruiters given identical CVs with accompanying photographs depicting fat and thin people rejected almost all the candidates who were fat. And in 2005, a Personnel Today survey of more than 2,000 HR professionals revealed that 93% of respondents would choose a “normal weight” applicant over an obese applicant with the same experience and qualifications. The same survey also indicated that 30% of HR professionals believed obesity is a valid medical reason for not employing a person, while 15% agreed that they would be less likely to promote an obese employee.

Employers should exercise caution

Employers should bear in mind that the best way to lessen the likelihood of any potential claim in respect of a protected characteristic – whether recognised by the law now or in future – is to hire on the basis of a job and person spec which provides objective and measurable requirements.

The law does not at the moment recognise ‘fattism’ per se, but the Equality Act 2010 does offer some protection, though the behaviour complained of would require to be cited as, say, age or disability discrimination to commence a claim.

Employment law policies to prevent discrimination

Our experienced employment solicitors provides advice on the employment aspects of all major business decisions. For advice on creating fair employment contracts and policies contact our employment team on 01895 207892. Alternatively email your details to employment@ibblaw.co.uk.

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