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Employment judge calls for new legislation to tackle ‘fattism’ in the workplace

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But lawyers aren’t convinced

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A leading employment judge has called for new legislation to tackle workplace discrimination directed at those who are overweight.

Philip Rostant — an employment judge who sits in both Birmingham and Sheffield — claims in an academic paper that new legislation is the only way to address so-called “fattist” discrimination in the workplace.

Rostant, who is also training director for the employment tribunals of England and Wales, states that obese people not only find it harder to gain employment, but are paid less than their thinner colleagues.

The former barrister — who regularly lectures on European discrimination law- – also argued that overweight people are more likely to get sacked. The academic report said:

People of non-ideal weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences … such as that they are insufficiently self-motivated to make good employees.

Co-authored by Tamara Hervey — a professor of law at Sheffield University — the pair believe that the Equality Act 2010 does not provide sufficient protection for those who are overweight.

Under the current law it is illegal to discriminate against people based on their age, gender, religion, sexual orientation or disability. Those who are overweight must prove that they are disabled to fall under the protection of the Act. The academic paper continued:

Being overweight, or even obese, is not in itself a prohibited ground of discrimination in UK law, or in the law of the European Union. This situation leaves a gap in the law which is remediable only by legislative reform.

PJ Kirby QC, a barrister at prominent London set Hardwicke, told Legal Cheek that it was “very unlikely” that an obesity law would get the green light. Suggesting it would be hard to define what obesity was, the top QC said it would be “very difficult” to prove that an employer dismissed an individual because of their weight.

Dan Chapman — head of employment law at Leathes Prior Solicitors — echoed Kirby QC’s sentiments. He told Legal Cheek that the introduction of new legislation to cover obesity would also be unlikely: He said:

It is a question of degree and needs to be assessed on a case by case basis. Similarly, depression and stress (for example) are capable of amounting to disability in the more severe cases but it is not suggested that all forms of depression/stress ought to amount to disability. I would be surprised if legislation moved to either define obesity as a free-standing protected characteristic or that obesity became a deemed disability in all cases.