A recent survey conducted by Personnel Today of over 2,000 HR
professionals in the United Kingdom has revealed that "fattism" is
manifested in the workplace. Of those interviewed, 12% believe that
obese workers should not be in client-facing roles, 30% consider that
obesity is a valid medical reason for not employing a person and 11%
think dismissal by reason of obesity is a fair dismissal. Perhaps most
alarmingly, a massive 93% of those interviewed, when faced with two
identical candidates of different weights, would employ the "normal
weight" person rather than the obese applicant.
At present there is no law in the UK outlawing discrimination on the
grounds of a person's weight. The law permits obesity in certain
circumstances to be a fair reason for refusing employment. By contrast,
several cities and states in the USA have outlawed discrimination on
the grounds of body weight. Studies like the one carried out by
Personnel Today might encourage the UK legislature to consider a "fat
law" (as the San Fransiscan law is colloquially called), but in the
meantime obese applicants and employees who suffer discrimination by
reason of their weight will have to frame their claim for
discrimination as some other employment right.
It is possible that an obese applicant or employee who has been
treated less favourably could argue discrimination under the Disability
Discrimination Act 1995. It is not clear whether obesity is a
"disability" in terms of the definition under the act. It is possible
for obesity to have a substantial and long-term adverse effect on the
applicant or employee's ability to carry out day-to-day activities.
However, tribunals are encouraged to take into account how far a person
can modify their own behaviour to improve their condition when
considering whether the person has a disability.
Whilst there are difficulties with arguing that obesity is a
"disability" for the purposes of the act, employers should bare in mind
that the applicant or employee may have an underlying medical condition
causing the obesity or alternatively the person's obesity may cause a
mental impairment. If the physical or mental impairment has a
substantial and long-term adverse effect on the applicant or employee's
ability to carry out day-to-day activities it will be a "disability "
under the act and the person will be entitled to protection from less
favourable treatment by reason of their disability.
Employers should be aware that an obese employee who is treated less
favourably than someone of normal weight might be able to utilise the
law of equal pay or the law against sex discrimination. If an employee
can prove that a provision, criterion or practice has a greater adverse
impact on obese employees of the one sex, he/she may be able to argue
there has been indirect discrimination. If a policy is directed only at
obese employees of the one sex, for example a policy only to distribute
female workers' uniforms in a dress size 10 or size 12, the affected
employee might be able to claim that there has been direct
discrimination.
A staggering 47% of HR professionals interviewed as part of the
Personnel Today survey believe that obesity has a negative effect on
employee output. It would be open for an employer to sack or discipline
an obese employee who is under performing by reason of their obesity on
grounds of capability. However, employers are warned to follow the
statutory disciplinary or dismissal procedure and to investigate these
claims thoroughly before taking action. It may also be necessary for
the employer to allow the employee a chance to improve and to warn them
that if they don't, they will be dismissed. Employers should ensure
that bullying and harassment of obese employees does not take place in
their workplace because the employee who is bullied or harassed because
of his obesity might have a valid claim against the employer for
constructive dismissal.
It is thought that a greater awareness of the legal implications of
treating obese people less favourably will go some way to helping obese
people who are disadvantaged in employment. However, one of the
problems with tackling the problem of "fattism" head on is the stigma
attached to obesity. One of the ways around this may be to encourage
employers to take a positive role in preventing obesity among their
workforce. Improving the working lives of employees is bound to have a
positive effect on the efficiency of the business.
Dr Nerys Williams who is a consultant occupational physician has
suggested things that an employer may do. These include: review the
food available at work and subsidise health alternatives; encourage
exercise by installing bike racks or providing loans for bikes; offer
employees reduced membership rates at local healthclubs and provide
individual weight advice and information to encourage and support staff
losing weight.
Although there is, as yet, no law that directly outlaws
discrimination in the employment field on the grounds of obesity, the
results of surveys like the one recently published by Personnal Today
might bring this sensitive issue to the legal and political agenda. In
the meantime, however, employers are advised to be aware of the legal
implications of their actions and to act positively to encourage a
healthy and happy workforce.