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Fattism – a new kind of discrimination?

Posted on Feb 13, 2015 by  | 0 Comments

Is it lawful to discriminate against a worker because of their weight?  It has been the subject of debate amongst those who follow employment law for years but has recently come to fore because of the judgements of the European Court of Justice and, nearer to home, the Northern Ireland Industrial Tribunal.  

There’s no specific protection for workers against ‘fattism’, as is the case for other forms of discrimination in the workplace such as sexism or ageism. This means obese employees need to rely on various existing employment rights to claim protection against unfair treatment at work related to their size.

In December 2014 the ECJ held in FOA (Kaltoft) v Billund (a case whereby a Danish childminder claimed he was sacked for being too fat) that obesity in itself cannot be regarded as grounds for protection from discrimination but if it entails “a limitation which results in particular from physical, mental or psychological impairments ... and the limitation is long-term..” it could be a disability if it hinders full and effective participation at work and thus the employee would be protected under the anti-discrimination legislation.  

Now a UK Employment Tribunal has become the first to consider the issue since the ECJ’s ruling.  The Northern Ireland Industrial Tribunal in Bickerstaff v Butcher held that Mr Bickerstaff , who had a body mass index of 48.5 and suffered from sleep apnoea and gout, was disabled in terms of the Equality Act 2010 and upheld Mr Bickerstaff’s harassment claim.

Mr Bickerstaff worked at Randox Laboratories in Co. Antrim and whilst there was subject to harassment by colleagues, particularly Mr Butcher, who said that he was “so fat he could hardly walk” and  “...he would hardly feel a knife being stuck into him....”.

The Tribunal was satisfied that Mr Butcher had been harassed for reasons related to his disability, namely his “morbid obesity condition”.      

Interestingly, the judgement makes it clear that there was medical evidence to suggest that Mr Bickerstaff’s condition would have improved over time if he had lost weight.   However, this made no difference to the Tribunal’s decision – the fact that Mr Bickerstaff contributed to his health condition was irrelevant to the Tribunal, as was the fact that it could improve.  It was the impact of the condition that was important, not its cause. 

The Tribunal’s judgement does not change the fact that there is still no direct protection against “fattism” in the workplace and the following facts still apply:

  • In the vast majority of cases, it’s unlawful for employers to dismiss staff because they are overweight.
  • A dismissal because of a worker’s weight will have to fall into one of the potentially fair reasons for dismissal in order to be lawful: conduct, capability, redundancy, breach of statutory duty or “some other substantial reason”.  So, it may be potentially fair for an employer to dismiss a worker on the grounds of capability if their weight hinders their ability to do the job (e.g. if a member of cabin crew has difficulty getting down the aisle of the plane because of their size).
  • However, if  a worker’s obesity hinders their ability to carry out their job, they may be able to claim disability discrimination under the Equality Act which ,if successful, could result in a significant award being made to the employee for injury to feelings and financial loss.

If you’d like advice about how to support overweight employees or on any other HR matter, please get in touch.   

Hannah

Holistic HR

For comprehensive, specialist advice and support for employers for a set annual fee, please see here for more information on Holistic HR.

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