Rising levels of obesity are a cause for concern

Employers need to be aware of the Disability Discrimination Act when
handling any employment issues relating to a worker being overweight

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.

By Jeffrey Jupp, Employment
barrister, Seven Bedford Row Chambers

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