Understanding the weight of the law against obesity discrimination

Across the UK, obesity levels have been steadily increasing, with the latest Health Survey for England reporting that 60% of the working age population (16-64-years-old) are now classed as overweight or obese.

Not only has this become a major public health concern, but the stigma and negative attitudes faced by people who are perceived to be overweight can also have an impact socially, and in the workplace.

This was highlighted in a recent report by Pearn Kandola, which found that 68% of UK employees surveyed agreed that weight discrimination exists in the workplace.

This belief was greater for those living with obesity (74%), more than a third of whom reported to have experienced weight discrimination in the workplace, including the way colleagues made an assumption about their ability, character or behaviour.

Weight discrimination happens in 69% of workplaces

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Should obesity be considered a disability at work?

It’s clear to see the real-life implications weight-stigmatisation can have on an individual’s career, with the World Obesity Federation noting how people living with obesity will have fewer promotions, lower pay, harsher disciplinary actions and higher contract termination rates than those who are perceived to have a 'normal' weight and perform the same role.

However, there is at present no specific legal protection relating to weight discrimination in the UK, and – although obesity rates continue to rise – this is unlikely to change any time soon.

New legislation is usually passed when there is no existing legal protection for a particular characteristic that warrants a legal safeguard, but the government could argue that obesity is covered by disability law, negating the need for new legislation.

This would mean that, if an employee wanted to pursue legal action, they would have to show that they have a mental or physical impairment related to their weight, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Under existing disability discrimination law, the person alleging weight discrimination would then need to prove their employer hasn’t met obligations to: 1) ensure the person is not discriminated against, treated less favourably or harassed because of their weight-related impairment, and 2) make reasonable adjustments to enable the person to do their job without being hindered by their weight-related impairment.

This may include adapting equipment, PPE or supporting the obese person if they are absent due to illness.

In the event that the employee is unable to demonstrate their weight is a disability, it wouldn’t be easy to take legal action on the basis of weight discrimination.

Not only would it be a costly, complex and lengthy process for the employee, but it could result in unwelcome scrutiny of their personal life.

Due to the nature of the case, this type of action could also garner a lot of media attention, further compromising the employee’s privacy and potentially adding emotional stress to the process.

Even if the case was successful, it still wouldn’t be quick or easy to extend the law to protect weight discrimination specifically, as it usually takes several years for a Bill to pass through Parliament.

However, that’s not to say that a change will never happen, or that employers should turn a blind eye to weight discrimination in the workplace.

A small number of jurisdictions across the world have gone further to reduce the ambiguity of general anti-discrimination laws.

Most recently, New York passed a Bill in May that made it illegal to discriminate against weight and height, following suit from Michigan, which has banned body size discrimination since 1976.  

Although there are no current legal protections in the UK against weight discrimination, employers still have a responsibility to set clear standards within the workplace culture and explicitly outline the standards of behaviour that should be expected from staff.

Any breach of these standards can result in disciplinary action, thus protecting the entire workforce, and fostering a positive working environment for all.

Ranjit Dhinsa is UK head of employment, pensions, immigration and compliance (EPIC) and Birmingham office leader at Fieldfisher