Discrimination in the workplace against people with disabilities is a real problem. But there's a legal side to the issue that makes it more complicated than other forms of discrimination.

Discrimination in the workplace is covered by the Equality Act 2010. This legally protects people with a range of "protected characteristics" such as ethnicity and gender – but it doesn't specify obesity.

If a person's weight qualifies as a "disability", they're covered. But this isn't always the case, meaning that obesity discrimination is sometimes allowed to go unchecked.

In fact, weight-based discrimination in the workplace is legal pretty much everywhere. A few parts of the USA have made it illegal – but here in the UK, a claim of obesity discrimination hinges on the question of disability.

The stats are troubling. Research published in 2018 revealed that 62% of Britons think discrimination is likely against someone who's overweight.

This is especially disconcerting when you realise that better-publicised forms of discrimination such as ethnicity, sexual orientation and gender received a lower percentage.

It begins with feelings of negative judgment and ramps up to outright discrimination, harassment and victimisation. Nearly half of UK adults with obesity have felt judged, even in healthcare settings and gyms.

Meanwhile, a quarter of adults in the UK said that if they had to choose between a candidate with a healthy weight and an equally qualified candidate with obesity, they'd choose the former.

From recruitment on, discrimination against obesity is a serious issue. People living with this stigma can become socially isolated and experience negative mental and physical health issues.

The UK's discrimination law is sweeping – but it's not comprehensive. Some see the absence of obesity from the Equality Act as leading to a situation where weight-based discrimination is one of the last acceptable forms of discrimination.

This shouldn't be the case – and if necessary, a legal challenge can still be successfully mounted if a person with obesity has been discriminated against.

What is obesity?

The World Health Organisation defines obesity as "abnormal or excessive fat accumulation that presents a risk to health" (our italics).

Obesity is not the same as being overweight. A BMI over 25 is classed as overweight, but obesity is over 30.

The WHO describes it as a global epidemic. Here in the UK, the NHS estimates that "around one in every four adults and around one in every five children aged 10 to 11 are living with obesity".

What is obesity discrimination?

Obesity discrimination can take different forms.

It can begin at the recruitment stage. A 2008 study found that overweight job applicants were stigmatised as being "less conscientious, less agreeable, less emotionally stable and less extraverted" than their peers.

This is partly an issue because of the "aesthetic labour market" – the practice of putting personal characteristics above qualifications when recruiting.

This is especially true in customer-facing roles like retail and hospitality, but it exists across the board. The stigma runs deep.

In employment, people with obesity can be subjected to derogatory humour, differential treatment and even wage penalties.

A 2016 study found that differences in weight led, on average, to a wage gap. A woman weighing two stone more than another would earn somewhere in the region of £3,000 less.

Obesity discrimination can also harm workplace relationships. People living with obesity can be teased, isolated, embarrassed and excluded from workplace socialising.

One consequence of this is that people with obesity are less likely to be involved with unions or in-work campaigns.

Is obesity protected by the Equality Act 2010?

The short answer is "no". The long answer is slightly more complicated.

The Equality Act 2010 synthesises a range of legislation to protect certain characteristics and to set out different types of unlawful behaviour.

The protected characteristics are:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion and belief
• Sex
• Sexual orientation.

Any discrimination, harassment or victimisation on the grounds of these characteristics is outlawed by the act.

Obesity is one form of discrimination that's missing from the list. This is because it's seen to fall under "disability".

If a person's weight has a long-term and significant impact on their day-to-day life, it's classed as a disability.

This may sound like semantics – but the real-world consequence is that obesity discrimination isn't always given the same treatment as other forms of discrimination in employment tribunals.

That's why legal guidance can be advisable when bringing a charge of obesity discrimination in the workplace. It increases the chances of a positive outcome at a stressful time. 

The case of Bickerstaff v Gerard Butcher

A case in Northern Ireland demonstrates how obesity has to fall under disability to qualify as discrimination.

Bickerstaff asserted that he had been subject to "disparaging remarks relating to [his] weight and body image" over a "considerable" period. This had led to stress, anxiety, general deterioration of his health and avoidable time off work.

The legal issue centred on whether Bickerstaff was a "disabled person". He suffered from gout and obesity. Was he disabled because of one or both of these?

In the end, the tribunal ruled that he was living with a disability.

What should you do if you're experiencing obesity discrimination in the workplace?

As with all forms of discrimination, the ultimate responsibility lies with employers to ensure a culture of zero-tolerance for obesity discrimination.

However, if you do find yourself being harassed, discriminated against or victimised because of your weight, you can file a complaint.

If this escalates to an employment tribunal or even court case, it can be advisable to seek legal guidance sooner rather than later.

Instructing a solicitor means you get the facts you need right from the get-go – as well as the peace of mind that you have someone with knowledge and experience in your corner.

At Milners, we have teams of experienced, tactful workplace discrimination solicitors in Leeds, Pontefract and Harrogate. Get in touch today for a free consultation.