Obesity and Discrimination

Obesity is the accumulation of excessive body fat, defined as a body mass index (BMI) of over 30. It is often unfairly associated with negative personality traits such as laziness, and gluttony. Obese people can therefore find it more difficult to find a job and can be subject to bullying at work. One in four adults in the UK is obese, so do they have legal protection against discrimination under employment law?

They do not have explicit protection, but the situation is a little more complicated than a simple ‘yes’ or ‘no’.

In 2014, there was the landmark case of a Danish childminder who claimed he was dismissed because of his weight. The European Court of Justice decided that obese workers are entitled to disability protection if their weight hinders full participation at work.

In the Northern Irish case of Bickerstaff v Butcher, a claimant with a BMI of 48.5 was harassed at work due to his weight. He also had other medical conditions such as sleep apnoea and gout. He was held to be disabled and, as such, the comments made by colleagues constituted disability harassment.

There was a recent UK case which involved a manager, Hayley Thomas, who worked for T&R Direct Insurance in Dorset. She took time off work for mental health issues, and when she returned, she was subject to derogatory comments about her weight and eating habits. This increased her stress and anxiety and she was awarded over £50,000 compensation at an Employment Tribunal. Although the relevant disability in this case was mental illness, the comments about her weight contributed greatly to creating a hostile working environment.

In the UK, the Equality Act 2010 prohibits discrimination on the grounds of ‘protected characteristics’. These are: age, disability, gender reassignment, marriage and civil partnership status, pregnancy and maternity, race, religion and belief, sex and sexual orientation. Obesity is not listed as a specific protected characteristic. Therefore, when a worker is treated badly due to their size, most of the time they must link their treatment to something else before they have a legal claim.  

In some cases, obesity may be classed as a disability. A condition is legally considered a disability if it has lasted, or is expected to last for, at least a year and if it has a substantial and negative impact on day-to-day life. It is the effect of the condition which is important, rather than how it was caused. Employers are obliged to make reasonable adjustments for disabilities, such as being more lenient with time off sick or to attend medical appointments, or by providing adapted office equipment such as sturdier chairs.

Obesity could arise as a result of another medical condition. For example, if a person has limited movement and is unable to exercise, or has a hormonal imbalance which increases their appetite they would be more likely to put on weight. In such cases, if they are treated unfavourably because of their obesity, they may be able to make what is known as a ‘discrimination arising from disability’ claim.

There can be some situations when an employer’s refusal to employ someone who is obese is reasonable. For example, when an actor is needed to play the part of a character who needs to look thin, or for a physical job where PPE is only available or effective for individuals under a certain weight. However, such situations are rare.

There can also be instances where a person’s weight prevents them from performing their job properly, but the appropriate action here would be a capability process focussed on what the individual can and can’t do, rather than emphasising their weight as the reason for the poor performance.

It is also worth noting that even if a worker can’t bring a discrimination claim in an employment tribunal, they may be able to raise a grievance or claim constructive unfair dismissal on the grounds of bullying and harassment.

The state of New York in the USA recently banned discrimination on the grounds of weight and height, and it remains to be seen whether the UK will follow suit.

If you have any questions, please contact us for advice by emailing enquiries@perspectivehr.co.uk or by phoning 01392 247436.

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