Should Overweight Workers Be Protected by UK Discrimination Law?

An employment tribunal judge has stated that overweight employees should be given the same rights as other employees with ‘protected characteristics’ that they may be discriminated for by employers and co-workers as a result.

Philip Rostant, who also acts as national training director of the Employment Tribunals of England and Wales, has authored an academic paper alongside Tamara Hervey, the professor of EU Law at the University of Sheffield.

Entitled ‘All About that Bass? Is Non‐Ideal‐Weight Discrimination Unlawful in the UK?’, the paper was recently published in Modern law Review and details how Rostant arrived at his conclusion.

Evoking the Equality Act 2010. Rostant outlines how fuller figured people do not receive the same protection others with physical and mental difficulties are offered, as the current notion of discrimination is largely focused on a “medical model” when representing disability.

Current UK employment law shows workers must be able to prove their weight “creates a substantial functional deficit” in order for them to qualify for damages in accordance with existing legislation for UK disability discrimination. Rostant compares UK legitimisation with that of EU law, which has an attitude reflecting a more cultural notion of disability, or as the report deems it – a ‘social model’. This social model for disability reflects the means by which wider society reacts to the treatment of workers instead of what the actual result of a worker’s impairment may cause.

Should Britain remain part of the EU following the June 2016 referendum, Rostant believes that UK legislation will have to evolve to reflect EU discrimination policies, as EU law is increasingly following in the footsteps of the United Nations Convention on the Rights of Persons with Disabilities; a system comparable to the social model approach.

EU discrimination rights are outlined by the EU Directive (2000/78/EC); the present Employment Equality Framework Directive EU law abides by. This contrasts with the Equality Act 2010. Rostant believes the only way to correct this is through UK legal change: “This situation leaves a gap in the law, which is remediable only by legislative reform.”

Providing support for his views, Rostant points to statistics that show how overweight employees are more likely to receive lower wages than their slimmer peers, and how they are less likely to be successful at job interviews.

The paper explains: “People of non-ideal weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere based on attitudinal assumptions and negative inferences […] such as they are insufficiently self-motivated to make good employees”.

UK employment law began taking overweight discrimination into account in 2015 when the European Court of Justice (ECJ) ruled in favour of claimant Karsten Kaltoft; a child carer from Denmark who claimed to have been sacked due to being overweight.

The case of Bickerstaff v Butcher shortly afterwards saw the Northern Ireland Industrial Tribunal unanimously rule in favour of a claimant’s case of harassment because his weight qualified him as disabled, and that his circumstance prevented a “full and effective participation” at work.

Rostant believes making overweight discrimination illegal will result in penalties on respondents that mirror those given to people found culpable of behaving in a discriminatory way towards workers with LGBT characteristics or part of ethnic minority.

The trouble with making attitudes to overweight workers a potential form of discrimination is that 64% of UK adults are classed as being overweight or obese; a figure that in is not directly a minority or applicable to one gender over another.