The growing problem of fattism at work

‘Employers can fairly dismiss people just because they are fat.’ True or false? In the vast majority of cases, the answer is false. And it’s not just unfair dismissal rights employers have to be wary of when dealing with overweight employees.

Obesity is a growing problem for society, and particularly for employers. According to the National Audit Office, one in five UK adults is dangerously overweight, costing the NHS 500m per year and the economy as a whole more than £2bn.

Although we have no specific protection against ‘fattism’ as we do against other forms of workplace discrimination, such as racism or sexism, obese employees could rely on various existing employment rights to claim protection against unfair treatment at work related to their size.
Employers cannot simply dismiss people because of their size, but must prove that it has an impact on the business. Dismissal because of a person’s weight must fall within one of the potentially fair reasons in the Employment Rights Act 1996: conduct, capability, redundancy, breach of statutory duty or “some other substantial reason”.

Capability is the most obvious reason where an individual’s obesity affects their ability to work. For example, a flight attendant who is too fat to walk along the aisles of an aeroplane may be incapable of performing their job.

The other fair reasons would be harder for employers to rely on, although health and safety will be relevant in some cases.

Obesity as a matter of misconduct would, in practice, only apply to a tiny percentage of workers – for example, in the performing arts or modelling. Some other substantial reason might seem a possibility, but remember that the reason cited must not be “whimsical, unworthy or trivial”. Dismissing someone just for being fat could well be an “unworthy” reason.

If an individual’s obesity hinders their ability to perform their job, they may have a claim under the Disability Discrimination Act 1995 (DDA), which, if successful, could result in costly uncapped compensation for financial loss and an award for injury to feelings.

The DDA defines disability extremely widely as “a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities”. While some conditions, such as alcoholism and voyeurism, are specifically excluded from protection, obesity is not, so it could fall within the definition.

In any event, obesity can be caused by or lead to a number of conditions such as depression, diabetes or arthritis, which may themselves attract protection under the DDA.

The DDA gives disabled employees enhanced protection against dismissal, so you must make reasonable adjustments to working conditions to enable disabled staff to remain at work.

So far there have been no reported cases deciding whether obesity itself is a disability, but it is only a matter of time before one arises.
In practice, employment tribunals are unlikely to have to decide this issue very often because an obese person may well have another condition entitling them to protection under the DDA, and an individual can also rely on a combination of less serious conditions to show they are disabled.

Finally, you should also be aware of your duty to maintain the trust and confidence of employees. Research shows that overweight people are less likely to be given a job and, once in a job, are frequently passed over for promotion or bullied. This seems to be based on stereotyping – fat equals lazy and weak. If an employer has no objective reason for treating an overweight person in this way, this could destroy trust and confidence, entitling the employee to resign and claim constructive dismissal.

Jonathan Chamberlain is partner at Wragge & Co

How HR can tackle fattism

– Make managers aware that obese employees may be protected by the Disability Discrimination Act

– Ensure that managers are vigilant for any teasing or banter about an employee’s size

– Seek medical advice if an employee’s weight begins to affect their work

– Provide support via employee helplines

– Be proactive about encouraging healthy lifestyles

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This month

– What steps can you take to control pensions costs and reduce the volatility of defined benefit pension schemes without breaking the law?

– Can employers dismiss staff if their genuine mistake has disastrous consequences for the company?

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