Size does matter when it comes to discrimination

Discrimination
is widely held to be valid as long as it is not based on race, sex or
disability. But ‘fattism’ can still lead to costly discrimination claims for
employers

Health club chain Fitness First recently suffered a PR disaster, when an
internal e-mail was leaked to the press. It has also raised some interesting
legal questions.

In the e-mail, HR director Lisa Somerville wrote: "Mike Balfour has
asked me to remind you that uniforms should not be requested over a size 16 as
this is adding considerable costs on to our merchandising budget… as we are a
health club promoting weight loss, please consider the impact of having larger
employees (both men and women!)… We are not asking you to have a
discriminatory recruitment policy but Mike has asked me to make you subtly
aware of the situation!"

It could be argued there is nothing unlawful about a ‘fattist’ employment
policy, and that employers can discriminate provided it is not on the grounds
of race, sex or disability. If a health club wants to employ slim people to
project the best image to its clients, then why not?

Unfortunately, employment law is never that straightforward. It is easy to
assume that if a decision is not directly influenced by a person’s race, sex or
disability it is not unlawful discrimination. In fact, it is possible to be
guilty of indirect discrimination if a ‘requirement or condition’ is applied
that has a disproportionate effect on a certain group.

Here, it could be said that this policy indirectly discriminates against
women, because its operation affects them more adversely. Recent studies by
Michigan University show the career progression of women is more closely linked
to their weight than it is with men.

An applicant could also claim for indirect race discrimination based on the
comparative weight of different nationalities and, of course, morbid obesity
can be viewed as a disability under the Disability Discrimination Act.

Such claims would only succeed if convincing evidence of disproportionate
impact could be produced. However, discrimination claims can arise from the
most seemingly innocuous facts.

The scope of discrimination law will soon be broadened by the European
Framework Directive for Equal Treatment. This will outlaw discrimination on the
grounds of sexual orientation, religion and age.

In this case, it may be possible to defend a claim on the grounds of
justification – but only if it objectively showed that being a certain weight
was a genuine job requirement, or in the case of disability, that it was not
possible to make reasonable adjustments.

This may (or may not) be the case for personal trainers – but what about
receptionists, cleaners, and anyone else who doesn’t need to be fit to do their
job? If it is solely related to the chain’s public image, this is unlikely to
be sufficient justification.

By Paul White Senior associate,
Stephenson Harwood

Key points

– Think laterally – staff will find creative ways to make their
claims, so out-wit them first

– Be particularly aware of indirect discrimination and changes
to discrimination law

– Minimise recruitment practices which are not directly
relevant to the positions being filled

– Be careful what you say in workplace e-mails

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