The World Obesity Federation recently revealed that one in four adults admit they’d be less likely to hire someone for a job if they were overweight and 62 per cent of respondents said they had been discriminated against because of their weight.
According to the NHS “obesity is generally caused by eating too much and moving too little”, arguably reinforcing the perception that obesity equals greedy and laziness. However, there is no evidence that people who are overweight are any less productive or take more time off work. In many cases, the causes of obesity go beyond the obvious and can be attributed to, for example, genetics, side effects of other medication or psychological factors.
Employers have a duty to protect the welfare of their employees both directly and vicariously. Being open-minded as to the reasons why someone may struggle with their weight and trusting that they will work just as hard is a good way for employers to encourage inclusion and create positive morale in the workplace.
Context is everything
In terms of equality legislation claims, disability discrimination is only likely to be found on the basis of someone’s weight where this results in such serious health issues that the definition of disability is fulfilled (where the physical impairment is so significant that it is long term and has a substantial effect on the individual’s ability to carry out day-to-day activities).
European case law has already found that obesity might fall under the definition of disability if it hinders a person’s “full and effective participation… in professional life on an equal basis with other workers”. There is therefore scope for disability discrimination claims to be brought around obesity in the future as case law develops.
A case in point is a recent discrimination claim where someone called a colleague (with links to the traveller community and Type 1 diabetes) a ‘fat ginger pikey.’
In Evans v Xactly, the Employment Appeal Tribunal (EAT) found that such words might not amount to harassment (nor disability discrimination, nor victimisation). This wasn’t an isolated incident: ‘Salad dodger’, ‘fat Yoda’ and ‘Gimli’ were other names colleagues allegedly called the claimant during his employment (along with the non-weight-related names ‘secondhand car salesman’ and ‘jellied eel salesman’).
However, while the employment tribunal (ET) had accepted that, on the face of it, ‘fat ginger pikey’ was a “derogatory, demeaning, unpleasant and a potentially discriminatory and harassing comment” to make, it found it didn’t amount to harassment in this case.
The EAT agreed. The context of this case was all-important to this decision.
The workplace environment in question was ‘indiscriminatingly inappropriate’. Mr Evans, it seemed, gave as good as he got (regularly calling one colleague ‘fat paddy’; and allegedly calling a female colleague ‘pudding’). He hadn’t seemed upset when he met with verbal abuse himself. In respect of his dismissal, the ET had found there were legitimate, performance-related reasons why Mr Evans’ employment was terminated.
In relation to the weight-related abuse, Mr Evans’ weight was said to be ‘unremarkable’ (according to the evidence, colleagues did not consider Mr Evans to be fat) and no evidence was provided of a link between Mr Evans’ weight and his disability. His claim for disability discrimination was therefore unsuccessful.
Whatever the outcome in this case, it’s hard to imagine that every colleague who witnessed this level of ‘banter’ felt at ease with it. Indeed, the case report alludes to a senior director who sat near the team and who “did not personally like the style of conversation” but “did not perceive it as unacceptable in context.”
Minimising risk
If your office culture regularly involves abusive name-calling, you’re running a risk of facing employment tribunal proceedings from offended employees. A good working environment can and should allow for laughter and joking – the law doesn’t stop that, but it does protect those who feel humiliated or demeaned by the behaviour going on around them, and it is a subjective test. The defence of “it was just banter” will not be accepted by tribunals. There is therefore a balance to be struck.
Disability discrimination law aside, taking care of your employees’ welfare, both directly and vicariously, is part of an employer’s duty.
Think about how weight is treated in your workplace and whether there are measures you could take to ensure employees do not feel humiliated or belittled because of characteristics such as weight (such as implementing a good anti-harassment and bullying policy, communicating this to staff and offering training that specifically addresses workplace harassment and bullying) – even if the only step you take immediately is to revise your own misconceptions and encourage others to do the same.
Siobhan Howard-Palmer is an employment associate at HRC Law