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Protecting overweight workers

05 February 2010
Protecting overweight workers

Although there is no formal legal protection for overweight people, employers should be wary of other ways in which they can bring discrimination claims. James Hall examines the issues surrounding obesity in the workplace.


THE PROBLEM

Press reports often draw attention to the problem of obesity in the UK and how it affects the workplace. The Size Acceptance Movement (SAM) recently staged a demonstration outside the offices of the Mayor of London, calling for legal protection for overweight workers.

With media reports on the rise of overweight people being discriminated against and even attacked in public, SAM is just part of a growing voice for formal legal protection. Yet, on the other hand, the US Government has acknowledged that it is more expensive to employ an overweight person and that they are generally less productive in the workplace.

So where do employers stand and what is the likelihood of such legislation being introduced?

THE LAW

Under current UK law, there is no formal protection for the overweight. Instead, laws protect employees or prospective employees against discrimination on the grounds of sex, race, disability, sexual orientation, religion or belief and age.

However, depending on their complaint, it may be possible for overweight people to bring actions within the current laws, albeit indirectly. There are claims that overweight women are treated less favourably than overweight men; if this is the case, then there may be an action for discrimination on the grounds of sex. Similarly, if an older overweight employee is treated less favourably than a younger (and thinner) counterpart, then this could form the basis for an age discrimination claim. Further, if a person can show that their size has been caused by a disability, then they can turn to disability discrimination.

If a person cannot show any form of legal discrimination, but believes they are being mistreated by their employer or another member of staff, then they could raise a formal grievance, which, if not dealt with appropriately, could give rise to a claim for constructive dismissal. However, in most cases there is no straightforward protection for overweight employees.

EXPERT ADVICE

Despite arguments from "fat activists", it appears unlikely that specific laws will be introduced in the UK in the near future. Many people are of the view that legislation to protect the overweight would be difficult to define and therefore the issue should not be enshrined in law: at what point is a person considered to be overweight for the purposes of legal protection and how can this be measured in a way that is not arbitrary?

Others take the view that weight is a matter that is generally within the control of the individual and should not therefore be afforded legal protection. Under discrimination laws, alcoholism and drug addiction are excluded on this basis. Additionally, where an individual's weight is the result of a medical condition beyond their control, they will in any event be covered by disability discrimination.

A further argument is that issues surrounding overweight people come very close to the wider issue of how people look. If there is protection for overweight people, then why should this not be extended to people of unusual height, or those with an unusual physical appearance? Care needs to be taken to ensure that discrimination laws do not cover too wide a range of the workforce.

The Government's Equality Bill to be implemented next year does not include any protection for the overweight, perhaps for the reasons outlined above, or perhaps because the Government simply does not think there is any need for it.

BEWARE!

Although there is no formal legal protection for overweight people, employers should be wary of other ways in which they can bring claims, as outlined above. Care should be taken to treat all employees of equal qualification in the same way.

CONTACT

James Hall, trainee solicitor, Charles Russell LLP

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