The 2016 Budget confirmed the Government would introduce the Sugar Tax, in a bid to reduce levels of childhood obesity within the UK. Taxes on ‘fatty foods’ have on the cards for some time but there were mixed reactions. Some thought the tax punished poorer families, some stated it didn’t go far enough, whilst others praised the idea that the money raised from the tax would go to fund school sports.
At the present time, discrimination on the grounds of obesity is not a “Protected Characteristic” under the Equality Act 2010. However, with concerns over the levels of childhood obesity and Public Health England predicting obesity will affect more than 50% of adults by 2050, should it be? There is in fact suggestions that obesity, even without being a named Protected Characteristic, could already fall within the realms of the Equality Act. Here I take a look at the issue in more detail.
Does discrimination towards those of ‘non-ideal weight’ exist?
Sadly, yes. Only this week was I reading a discussion on a LinkedIn group where the author of the post asked whether it was “OK to recruit people for their looks?” His question was posed following a visit to a new restaurant and bar in Leeds where he noted the staff were all “unfeasibly beautiful”. He went on to say he was put off the establishment by this as he couldn’t help but be disappointed when thinking of all those applicants who were equally, or perhaps better qualified for the job but did not get offered a contract on the basis of their looks. Some very interesting comments followed the initial post, with some contributors firmly speaking towards the unfair recruitment practice, whilst others took a different path and spoke about branding and the commercial decisions based on their target market or audience.
Equally, I’m sure the majority of us have overhead comments made by others about someone’s weight or cruel nicknames which some attempt to pass off as ‘banter’.
An Employment Judge recently said “fattism” should be taken seriously as a form of workplace discrimination and it should be an area of discrimination in its own right.
Could obesity already qualify as a disability?
Possibly, yes. A case in the European Court of Justice (ECJ), FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund C-354/13, has possibly opened the door for claims of this type as the ECJ determined that the effects of the worker’s obesity in this particular case rendered him disabled.
The case concerned Mr Kaltoft who was selected for redundancy after 15 years working as a childminder. Mr Kaltoft wasn’t given any reason why he was selected for redundancy over his colleagues although it was noted that his obesity was mentioned at times during the dismissal process. He pursued a claim and was successful in establishing that he had been selected for redundancy as a result of his weight which was discriminatory.
The decision reflected an Employment Appeal Tribunal (EAT) case closer to home. In Walker v Sita Information Networking Computing Limited the EAT determined that the effects of Mr Walker’s obesity did amount to a disability. Mr Walker suffered from asthma, chronic fatigue syndrome, anxiety and depression amongst other physical and mental impairments. It was determined that his conditions clearly fell within the definition of a disability, namely:
“a physical or mental impairment which has a substantial and long term effect of his ability to carry out normal day-to-day activities.”
What does this mean for UK law?
Discrimination on the grounds of weight may be added to the list of Protected Characteristics under the Equality Act in the future, however, it remains undecided at present.
What is however clear is that whilst obesity itself does not render a person disabled, the effects they are suffering as a result of their weight may render them more likely to be classed as disabled than not. Employers should therefore exercise caution when dealing with obesity in the workplace.
Do you have an Equal Opportunities policy and an Anti-Harassment and Bullying policy in place to stamp out discriminatory behaviour in the workplace? Do your staff engage in banter or nicknames which are questionable? At SCE Solicitors we have a wealth of experience in dealing with discrimination in the workplace. If you would like to discuss your policies or a bespoke training session for your managers, please contact me on 0113 350 4030 or at email@example.com.
Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.