Discriminating against someone because of their weight could land your company in hot legal waters
Fashion brands and movies all seem to have reached the conclusion that it’s bad to be fat. If you’re packing a few extra pounds then you’re seemingly as free to ridicule as the overweight Goonie Chunk being asked to dance the truffle shuffle – a soft target in every meaning of the word. However, while fat jokes are abundant in our society, employers are discouraged to let lookism determine who they recruit and how they treat their staff.
Knowing your rights and obligations as an employer regarding how to treat workers with some extra fat is becoming particularly important as the number of obese adults have increased from 9.4% in 1975 to 27.8% in 2016, according to the World Health Organization.
Let’s make one thing clear to begin with: there is technically no legal protection against fat discrimination. “Obesity is not in itself a disability under the Equality Act 2010,” explains Amanda Isherwood, associate solicitor in employment law at Gorvins Solicitors. The regulation does protect several characteristics, including race, sexuality, gender, religion and disability. Yet, being chubby doesn’t give you any legal protection whatsoever. “However, if an employee is obese they are potentially more likely to have a number of health problems, such as diabetes or depression,” Isherwood continues. “[These] may fall within the definition of disability under the Equality Act being a ‘physical or mental impairment’ which ‘has a substantial and long-term adverse effect’ on his or her ‘ability to carry out day-to-day ‘activities’. [This] would mean that [they’re] protected by the law from discrimination.”
That was the case in the often quoted Employment Appeal Tribunal (EAT) case Walker v Sita Information Networking Computing Ltd . “Mr Walker had numerous conditions that gave rise to [many] impairments which caused him substantial difficulty with his normal day-to-day activities, in particular pains in the head and knee, bowel symptoms, constant fatigue and poor concentration,” says Barry Ross, director of Crossland Employment Solicitors. “The EAT clarified that it is the effect of the impairments that dictate whether a condition is a disability, not the actual cause of them and Mr Walker was deemed to be disabled in accordance with the Equality Act 2010.”
The European Court of Justice is of a similar mind. In a 2014 case it ruled that obesity can constitute a disability if, “under particular conditions, it hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.” “Subsequently, an employee who has obesity caused by over-eating and an employee who is obese by reason of a medical condition will potentially both be protected from discrimination,” explains Paul Holcroft, associate director of advisory at Croner, the business consultancy. This means that employers must accommodate things like larger chairs and parking spaces for obese staff members.
But meeting these employees’ needs could come with raised costs, which is something 61% of employers worry about when they’re considering hiring an overweight candidate for a role, according to a survey of 1,000 British bosses by Crossland Employment Solicitors. Moreover, 45% of UK employers would be less inclined to hire obese candidates.
However, this could land them in hot legal waters if the job seeker reports their long-term conditions during the interview as this would mean they’d fall under the protection of the Equality Act 2010’s disability characteristics. This was something 51% of employers were unaware of.
Given the risk associated with treating obese candidates and employees unfairly, employers are advised to avoid this from happening in their business. Starting out at the recruitment stage, the employment of new workers should be done against a clear set of skills required for the role. “Once extraneous considerations are allowed to filter in, it will become increasingly difficult to avoid unconscious bias and an employer will have greater difficulty in justifying its decisions as being non-discriminatory,” says Barry Stanton, partner and head of the employment group at law firm Boyes Turner.
Another way to avoid it is to use a panel during the interview stage, instead of a solo recruiter. “[Using] a panel during an interview process can make one interviewer have to justify why they [don’t] like a candidate and help to demonstrate if [there’s] a potential issue of discrimination arising,” Holcroft explains.
Similar strategies should be implemented for hired workers too. “To give another example, if it becomes apparent that a manager has been treating an employee unfairly due to their weight, such as denying them opportunities provided to other employees, it may be that the manager in question needs further training in counteracting unconscious bias,” says Holcroft.
Knowing your rights and obligations as an employer means you can create a successful and welcoming company for all your employees, no matter if they’re carrying a few extra pounds or not.