The full weight of the law – can you discriminate against overweight workers?

Is it okay to be “fattist”; to make workplace decisions; recruitment, dismissal etc. based on weight? What about a bit of innocent banter/ teasing by work colleagues?

Far from being okay, recent case law also means that it is potentially unlawful discrimination.

Is this new?

There is no specific law prohibiting discriminating against an employee who is overweight/obese. The reality was however that an employee suffering from a related or underlying physical or mental long term health condition which had a substantial impact on their normal day to day activities (for example depression, diabetes, respiratory problems etc) was likely to be deemed disabled and therefore protected from disability discrimination. Obesity however was not a disability in its own right.

That changed in December when the European Court of Justice (ECJ) held that a 25 stone Danish child minder was disabled. He was made redundant after 15 years’ service but alleged that his dismissal was discriminatory because of his weight and a perception that he could not do his job. The ECJ held that “If obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability”.

This case is binding across the EU. In February this year, a UK employment tribunal applied this case, finding that a worker, with a body mass index (BMI) of 48.5 was disabled. The harassment he had suffered from a colleague with comments such as “being too fat to walk” was discriminatory. The tribunal accepted that his sleep apnoea and gout was linked to his diet and weight problems, but his obesity in itself was a disability.

Is there a protected weight?

There is no specific BMI which automatically deems the employee disabled. This is judged on a case by case basis. However, the ECJ has indicated that having a BMI of 30 or more could be considered a disability if it impacts an employee’s ability to work.
What if this is self-inflicted?

Employers cannot argue this to defend against their legal obligations. The ECJ held that its irrelevant – its the impact of the condition now not its origin. Many employers/ co-workers, however will find it hard to accept that someone whose condition is potentially within their control because of diet/ lifestyle has a protected disability as does someone whose condition is caused by something beyond their control because of illness, genetics or accident.

What should I do as an employer?

You should revisit your Equal Opportunities and anti-harassment policies and training to make sure that your workforce understands that “fattism” is not acceptable. As employers you could be vicariously liable for any harassment from co-workers.
You should also be aware that you may need to make ‘reasonable’ adjustments for obese workers, if they are disabled, to remove any obstacles to their participation in the workplace. What is reasonable depends upon the size and resources of the employer, but this could include making physical adjustments: accessible doors, toilets, chairs/ desks/ equipment, fire escapes, parking spaces to adjustments to their role: flexible working requests, redeployment etc.

Finally, employers should be aware that employees might try to use their weight as a defence to performance and absence management, however it is only genuine disability which will be protected and there should be medical evidence to support this.
Employees do not need any qualifying period of service to bring a disability discrimination claim and damages are potentially unlimited. It is not an issue then that employers can afford to treat lightly.