‘Fattism’ – A New Form of Discrimination?

In a recent paper, Philip Rostant, Judge and training director for the Employment Tribunals, suggested that protection from discrimination should be extended in the future to employees of ‘non-ideal’ weight – namely overweight or severely underweight individuals. He noted that obese people are less likely to get hired, are generally paid less and are more likely to be dismissed than their thinner colleagues.

Currently, employees are protected from discrimination in the workplace on the grounds of 9 protected characteristics under the Equality Act – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. There is no protection from discrimination on the basis of obesity in itself (albeit obese employees may bring claims for bullying or personal injury or on the basis of permanent health insurance disputes).

However, the European Court of Justice held last year that an individual may be protected if they are able to show that the effects of their obesity render them disabled for the purposes of discrimination law. A ‘disability’ is defined as a physical or mental impairment that has a substantial adverse effect on an individual’s ability to carry out day-to-day activities and which has lasted or is likely to last for at least 12 months. As such, obese individuals are only protected at present if they can prove they are disabled, which will not always be the case.

Given the steadily increasing numbers of obese individuals in society, the idea behind the extension of this area of law is that it would protect those of ‘non-ideal’ weight from the negative connotations that are sometimes associated with their size, for example, the assumption that overweight people lack self-motivation. If discrimination on the basis of size is introduced in the future it would mean that individuals of ‘non-ideal’ weight would receive protection from negative behaviours - such as derogatory comments about their sizeormissing out on promotion or employment opportunities because of it.

The introduction of an ‘obesity’ law in the future would not, however, be without its difficulties. Even if obesity became a protected characteristic, employees claiming protection would still have to establish their size was the reason for their treatment.

Samantha Prosser is a solicitor at leading senior executive employment law firm BDBF.