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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.

38 Comments

Anonymous

Put down the cake and stop moaning.

(23)(3)

Former fat person.

As a former fat person, I thought I would piggy-back off the top comment.

There are a multitude of reasons for why someone is fat. On one hand, it could simply be because they were bought up by parents who did not care about nutrition. By watching the eating patterns of their parents, certain lifestyle patterns would become ingrained into them. It would be perfectly normal to eat 5 bowls of cereal for breakfast. This is what the tabloids have rather lovingly termed as ‘FAT FAMILIES’.

On the very other end of the spectrum, over-eating could be caused by complex psychological issues. For example, a woman who was molested by a child could over-eat because she thought that being ‘fat and unattractive’ would prevent a man from causing her such harm again.

Yet, you will find that most over-eaters lie somewhere in the middle. They were never adequately taught about nutrition, and become ‘chubby’ children. They then face bullying as a child, and comfort eat in response. Very soon, this habit of ‘eating away the sorrows’ becomes instinctive.

My point is that the reasons for overeating is primarily down to two factors which are often interlinked: lifestyle patterns and psychological distress.

Unfortunately, the NHS doesn’t seem to be aware of this. I myself was handed generic leaflets on healthy eating and exercise, and repeatedly told that I needed to lose weight. A very individual problem is attempted to be solved in the most generalised of manners.

It must be treated as a psychological problem. Even for those ‘fat families’. GPs/counsellors ought to sit down and identify with the patient why they overeat, and at what point they ought to stop eating. Nutritional advice is perfectly useless unless people are made aware of certain accumulated habits, and learn to alter them.

(10)(5)

Anonymous

It’s fairly easy to educate yourself about nutrition and to calculate the amount of calories you should be eating…

As for when you should stop eating, well, how about when you’ve eaten the number of calories you calculated that you needed for that day?

(5)(2)

Anonymous

“a woman was molested by a child” – wow…..

(1)(1)

the disgruntled

If you are substantially overweight, you are much more likely to suffer from poor health than someone who is of normal weight. If you are more likely to suffer poor health, you are more likely to take time off work due to illness. If you are more likely to take time off work, you present a greater liability to potential employers.

Employers should therefore have every right to incorporate whether someone is overweight as a factor when hiring. If people feel that affronted, there are numerous solutions (a treadmill is one).

(26)(5)

chimpboy

If you are substantially tedious and annoying, you are much more likely to cause stress and depression in those around you than someone who is of normal personality. If you are more likely to cause poor health, you are more likely to cause others to take time off work due to illness. If you are more likely to cause others to take time off work, you present a greater liability to potential employers. You are also annoying.

Employers should therefore have every right to incorporate whether someone is annoying and tedious as a factor when hiring. If people feel that affronted, there are numerous solutions (a gun is one).

(10)(23)

the disgruntled

@Chimboy.

I completely agree. Employers should have every right to discriminate against employees with personalities that do not fit their company’s work culture, and indeed they do.

What exactly is your point? That you shouldn’t be allowed to hire someone just because they’re an arsehole?

(9)(1)

Anonymous

Maybe that’s why Not Amused is a barrister, not a solicitor…

(1)(1)

the disgruntled

@Chimboy

I completely agree. Employers should have every right to discriminate against employees with personalities that do not fit their company’s work culture, and indeed they do.

What exactly is your point? That you shouldn’t be allowed to hire someone just because they’re an arsehole?

(6)(0)

Anonymous

to not hire someone*

(4)(0)

Just Another Person

Takes a pretty weak person to be so badly affected by someone who is boring and/or annoying that they need to take time off work due to how stressed they are – I reckon your employer would rather fire you for that…

(3)(2)

the disgruntled

Additionally, in certain jobs having staff that adhere to the general standards of what is attractive can hugely influence profit and success. For example, abercromibe and fitch has built its entire brand image around it.

If having/not having overweight staff can materially effect your business success, you should be allowed to discriminate.

(5)(4)

Anonymous

I want to see ugly people at Ambercrombie!

(3)(0)

Anonymous

Curious to know what employers think of those who are ‘underweight’… Could they potentially be perceived as lacking stamina? … and therefore be perceived in the same way as overweight individuals..

(0)(0)

Anonymous

Being fat isn’t like being black, or gay, or a woman, or anything which discrimination legislation is designed to protect. Being fat is bad for you, and negatively impacts on work (e.g. there have been numerous studies to show that obese people take fat more sick days than those of a healthy weight). Being fat is a consequence of poor lifestyle choices, to even place it on the same category as a legitimate protected characteristic is both stupid and offensive to those experiencing genuine prejudice.

(15)(2)

Anonymous

“obese people take fat more sick days”

I see what you did there..

Good comment though.

(8)(0)

Anonymous

True, that’s often the case, but there are plenty of additional factors you’re not including there. Not all fat people are fat because they overconsume – sometimes there are other reasons.

A lot of fat people *are* fat because they overconsume, true, but in some cases this can be down to the effects of medication, other illnesses or injuries, or emotional overeating brought on by workplace stress. I suspect that these cases would fall under the disability protected characteristic though. It can be quite difficult for fat people who do suffer from disabilities because whilst every fat person is walking around with a metaphorical sign saying “fat”, people aren’t always walking around with a sign saying “thyroid problems currently not under control” or “joint issues mean that I can no longer exercise as much as I could previously” or “emotional eater”. It’s really easy to judge a fat person, but I think maybe you should consider that sometimes obesity is a side effect of a protected characteristic even if it isn’t one itself.

(3)(4)

Anonymous

Classifying “emotional overeating” as an illness is tenuous at best. Stop providing excuses for what is simply a lack of will power / lack of desire to eat less.

Joint issues resulting in an inability to exercise less? Why not eat less then? You know, the amount you need to live healthily, rather than an amount which results in weight gain?

Sure, *some* instances of being overweight are attributable purely to a health condition. But most are not, and comments such as yours often provide those inexcusable cases with self justification.

(10)(3)

Anonymous

Are you aware that there are people in this world that have a severe medical condition which causes them to be that way? My mother for instance is one of those people. She is a truck driver that has bad knees and a bad back from driving the truck but you probably do not care about that case either. Oh well I am not one of those people I am 6’4″ 245lbs and I exercise every day. I would love to see you say something like to my mother in front of me. Probably never happen though you are probably just an internet tough guy. I doubt very seriously you would say that to someones face. Just my thought.What do you think. Oh I am sorry you probably do not have a brain. I on the other hand will be happy to buy you a plane ticket to come here and see if you have the nerve to say that to someone I know.

(3)(13)

Mr Brainless

To say what to you exactly? That people should eat the amount they need and not more?

I’m sorry you find this such a shocking and offensive concept. I’m also sorry that you missed the instance where I conceded that some instances are purely down to a medical condition.

(7)(1)

Anonymous

Do you even misc?

Anonymous

u aware?

(2)(1)

Anonymous

Claiming that others do not have a brain when your comment is the most poorly written one on the article. Ironic.

(0)(5)

Anonymous

Negged for not being aware.

Anonymous

None of you are aware! My mother’s truck driving problem caused her to grow an extra four legs and perpetually sing the national anthem.

Anonymous

The problem with fat lawyers is that instead of trying to generate work for the firm they spend all networking events eating mini-burgers as if there was no tomorrow.

(10)(1)

Anonymous

Fat people are jolly

(1)(0)

Anonymous

Fuck off tubby

(2)(1)

Anonymous

Legal Cheek’s comments section is the 101 of how to vocalise horrendous assumptions.

If you want to make these generalisations about “fat” people and say you should allow to discriminate against them, you should also allow employers to scrutinise the diets and drug consumption (whether legal or illegal) habits of every employee. Vegans and heavy drinkers would also be screwed.

Let’s throw in some genetic testing while you are there too, to check whether you prone to a heart attack before you reach your forties or if you have a family history of mental health issues. By the time you applied these ideals against everyone you wanted to employee, you’d never hire anyone.

(4)(2)

Anonymous

If employers had readily available access to individuals’ diet and alcohol consumption I’m sure it would (and should) be taken into account. Therefore that’s not really an argument against considering weight as a factor.

The genetic remark is just a bit silly, and completely different considering that you can’t change your genes by eating more healthily and exercising. Even if what you said was implemented, you wouldn’t have nobody hired, you’d just have people making much more informed decisions when hiring…

(2)(1)

Anonymous

What if your genetic condition makes you “fat”?

(0)(0)

Anonymous

Then you fall into the small minority whose weight problems are due purely because of a medical problem. Which sucks, but c’est la vie.

(1)(0)

Anonymous

Wow… So you get equally discriminated against because of a perceived generalisation?

No wonder there’s still diversity issues in the legal profession with attitudes like this. It’s clearly not going to change anytime soon with the clear conscious bias so many have.

Anonymous

Yes. You will be. Why? Not because everyone is an evil bastard, but because people make subconscious assumptions from generalisations. Everyone does. Every single day. In a whole host of situations. If I was told that putting my finger in a mouse trap would result in pain 90% of the time then, when presented with the offer of this, I would assume I was going to get hurt. This may be unfair on the 1 mouse trap in ten that means no harm, but that’s simply life.

This isn’t a law issue. Appearances matter because humans judge one another before even asking for the true knowledge, and this is something you can’t change.

Anonymous

You can try and change people by not allowing that ill-perceived judgement from making hiring decisions though. Not everyone is as closed minded as some of those who have posted on here.

Hmmmmm

24 comments in, and no mention yet of the Kaltoft case. Perhaps I can at least put that right:

59

However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78 (see, to that effect, judgment in HK Danmark v Dansk almennyttigt Boligselskab, C-335/11 and C-337/11, [2013] IRLR 571, paragraph 41).

1803.9, 1897, 1898

60

Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.

(2)(0)

Lard Hurley

Could be worse.

You could have a ridiculous hair style too.

(2)(0)

POI

@LC the ‘share story via email’ button on your dedicated app for iOS/iPhone doesn’t work

(1)(1)

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