The size zero debate has put thin people – and now thin discrimination – in the spotlight.
A Thomas the Tank Engine ride received publicity in April amid reports that lawyers advised against advertising for a Fat Controller who was fat. The concern was that the advertisement would discriminate against thin applicants.
Q Is discrimination against thin people unlawful?
A There is no legislation outlawing workplace discrimination against thin people per se in England and Wales.
Q Can employers discriminate against thin people with no legal consequences?
A Not necessarily. Weight may be connected to another personal feature that is protected by anti-discrimination laws. For example, disability, gender, age, pregnancy and race potentially influence both a person’s size, and how their size is perceived by others. Protection from these types of discrimination applies at every stage of the employment relationship, including recruitment.
Once recruited, unequal treatment of an employee for being thin can be unlawful. For example, if an employee is picked on by colleagues for being ‘stick thin’ or ‘weedy’, this could entitle that employee to resign and pursue claims of (constructive) unfair and wrongful dismissal. If the employee suffers psychiatric injury as a result, the employer will be liable.
A dismissal for no other reason than the employer’s disapproval of the employee’s weight will almost certainly be unfair.
Q Is there evidence that thin discrimination in the workplace exists?
A Formal evidence is hard to find, perhaps because thin discrimination is rare in comparison with fat discrimination. A recent survey carried out by Personnel Today found that 93% of employers would hire a ‘normal weight’ candidate instead of an equally qualified obese one. Employers also believed that obesity negatively affects employee output and self-discipline.
It is possible that more thin discrimination at work is directed not at women, but at men, who may be reluctant to report it (as is often the case with domestic violence against men).
Q Will it become unlawful in the future?
A In the UK, social pressure to legislate is mounting. Some say weight does not warrant the same protection as existing unlawful forms of discrimination, based on an assumption that people can choose to change their weight, unlike their race or disability. Medical inaccuracy aside, this is not logical – the law prohibits discrimination on grounds of marital status and pregnancy, over which personal choice can be exercised. If the factor being discriminated against has no bearing on the ability to do the job, the law should react.
In the US (which was ahead of Europe with age discrimination) a handful of jurisdictions have passed laws to protect the obese. In addition, the ‘morbidly obese’ have the protection of US disability discrimination law. Foreign jurisdictions where, culturally, fat is held in higher regard than thinness tend not to have sophisticated employment protection laws. It is therefore probable that specific weight discrimination law will arrive in England, but not for some time. It remains to be seen whether the whole weight spectrum will be protected, or only the obese.
Q How should employers manage weight-related issues?
A If a person’s weight is genuinely preventing them from properly performing in their job, then treat this as you would an ill-health issue – seek consent for a medical report, and follow the appropriate performance management and disability adjustment procedures. Ultimately, having exhausted other options, the potentially fair reason for dismissal would be lack of capability.
Complaints of weight-related harassment should be treated as statutory grievances. Weight-related teasing or bullying should be stopped.
Q What about staffing the Thomas the Tank Engine ride?
A If weight discrimination laws were implemented, discrimination when recruiting for dramatic performances would probably not be prohibited. When recruiting an actor for a male role, the law does not prohibit discriminating on grounds of sex. It is, however, easier to provide a skinny Fat Controller with a prosthetic paunch than to turn an actress into an authentic male actor.
If recruitment on railway management skills alone selects a slim Fat Controller, worry not. Dedicated Thomas the Tank Engine aficionados will assume that they are being greeted not by the Fat Controller (or Sir Topham Hat, to use his politically correct name), but his right-hand man, Mr Percival – The Thin Controller – who controls the narrow-gauge railway.
By Anne-Marie Balfour, solicitor, Speechly Bircham