15 February 2005

It is not currently unlawful to discriminate on the grounds of weight under the provisions of the Disability Discrimination Act. In essence this means that employers can currently refuse to employ an overweight applicant for a job on the grounds that they are too fat. There is no need for the employer to have any justifiable reason for such a policy but it could well be embarrassing for an employer if such a policy became known.

The UK is behind the USA in this respect where a number of cities, for example San Francisco and states have outlawed discrimination on the basis of body weight and/or height. The law was passed in San Francisco as a result of a sign outside a gym which read “when the aliens come they’ll eat the fatties first”.

Research in the USA has revealed that overweight employees earn an average of 2.5% less than their slimmer counterparts.  This percentage increased to 6.2% for female employees.
Whilst the Disability Discrimination Act does not expressly prohibit discrimination based on an individual’s size, an employee may still have protection under the Act.  The definition of disability under the Act means a physical or mental impairment that has a substantial and long term affect on a person’s ability to carry out day to day activities.   

It is conceivable that an obese individual may well have difficulties carrying out day to day activities in the ordinary sense of the word.  However, the individual would need to show that they were incapable of carrying out day to day activities as defined in the Guidance to the Act. These includes problems with mobility, dexterity and ability to concentrate.  If the individual could show that his obesity did have a substantial and long term affect in this way, then obesity could in itself be a disability.

That said, the Guidance to the Act makes it clear that account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of the impairment on normal activities.  If the person can act in such a way as to prevent the impairment from continuing to have an affect on normal activities, the Guidance is clear that they would not meet the disability definition. In other words, the employer can advise the employee to exercise or go on a diet.

The difficulty arises where there is some underlying medical reason for the obesity such as diabetes or depression or the obesity caused those conditions. In these circumstances, the individual is more likely to have a disability which is protected by the Act than where they are simply obese without any underlying medical condition.   There has been no case law regarding this issue in the UK but in the USA, the federal court has provided some guidance by concluding that simple obesity would probably not qualify as a disability but morbid obesity caused by a physiological disorder was.

The Disability Discrimination Act has recently been extended to include further classes of employees, to apply to all employers and to extend the classes of discrimination. Further amendments are proposed to take effect in December 2005 to include further illnesses such as HIV and cancer as disabilities from diagnosis. The Employment Tribunal is also increasingly willing to interpret the provisions of the Act widely by for example deciding that it is likely to be a reasonable adjustment to offer an employee a higher grade job and that in the circumstances of one case that it is a reasonable adjustment not to stop contractual sick pay even where the entitlement had ceased.  Given these developments, it is possible that obesity will at some point in the not too distant future be classed as a disability in its own right.

In a recent development, a 30 stone man who was dismissed from his job at Sellafield nuclear plant for being over weight is currently appealing the decision. Mr Ivison was dismissed because he could not fit through security turnstiles or into his decontamination suit.  It will be interesting to see whether he subsequently brings a claim as a result. Watch this space.

In the event that you require further information concerning disability discrimination please contact any member of the employment law team.