Rising levels of obesity are a cause for concern
Jeffrey Jupp
Generally, it is not yet unlawful to discriminate on the grounds of weight. If an overweight applicant applies for a job, you can lawfully refuse to employ them because they are too fat. You may have good reason, such as on the grounds of health and safety. You may simply have an irrational bias against fat people - but even then, you wouldn't fall foul of the law. Neither would your policy of discrimination against overweight people - although this can prove embarrassing if revealed (witness the leak about Fitness First last year when an internal e-mail indicated that it had a policy of not supplying size 16 uniforms).
The UK is lagging behind the US on this matter. So far, I am not aware of any organisation here with a similar profile to the US's National Association to Advance Fat Acceptance (NAAFA). Founded in 1969, it is dedicated to improving the quality of life for overweight people.
It and others like it are enjoying some success in changing attitudes towards the treatment of overweight people Stateside. For example, in a number of cities and states, including San Francisco and Washington DC, discrimination on the grounds of body weight and/or height has been outlawed. In some cases, the law only applies to state organisations, or those that receive state funding.
The San Francisco law, known colloquially as the 'Fat and Short Law', is said to have been provoked by a sign outside a gym that read: "When the aliens come, they'll eat the fatties first". Meanwhile, in California, fitness instructor Jennifer Portnick was able to sue the Jazzercise dance studio for turning down her application because she was 17 stone. Jazzercise subsequently withdrew its requirement for fitness instructor job applicants to look fit.
Research in the US has revealed inequalities and stereotyping that will not be unfamiliar to those involved in UK discrimination cases. For example, a study published in Health Economics revealed that overweight staff are paid on average 2.5 per cent less than workers with an average body mass index. Among females, this statistic rises to 6.2 per cent. The same study concluded that while pay discrimination against men did not begin until they were very overweight, women suffered pay discrimination after becoming just 30 pounds overweight.
Until the UK has an equivalent of the 'Short and Fat Law', overweight candidates and employees will have to rely on existing laws for redress, such as the Disability Discrimination Act 1995.
In the US, however, the courts were initially unwilling to recognise obesity as a qualifying disability in the Americans With Disabilities Act (ADA). But courts are increasingly taking ADA claims based on obesity more seriously. In a case in Rhode Island in 1993, the federal court concluded that although simple obesity probably would not qualify, morbid obesity caused by a physiological disorder was a disability entitling the plaintiff to ADA protection. A similar case would probably bring about a similar result in a UK employment tribunal.
However, the guidance to the 1995 Act recognises that account should be taken of how far a person can reasonably be expected to modify their behaviour to prevent or reduce the effects of any impairment on day-to-day activities. It further states that if a person can be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on their ability to carry out normal daily activities, they would not meet the disability definition. So provided there is no medical reason for the obesity, an employer can simply advise their employee to go on a diet and take some exercise.
What if the worker becomes fat over time and becomes incapable of performing the job for which they are employed? Dismissal for capability is a potentially fair reason, and includes any health or physical quality. In determining whether the dismissal is fair, a tribunal is likely to consider whether an employer has given the worker a reasonable opportunity to lose weight, and warned them that failure to do so would put their job at risk.
When faced with an employment issue arising because of a person's excessive weight, consider existing law and whether the complaint or issue fits within that framework. First, check that there is no medical reason for the increase in weight. If there is, be aware of the DDA. If not, the case must be approached in the same manner as any other capability issue.
