Body-types not accounted for in employment: Body discrimination By Fatima Mumtaz

For Employers, Mental Health

The Equality Act 2010 prohibits discriminatory conduct in the workplace. People are entitled not to be directly or indirectly discriminated against, or harassed, because of their protected characteristics. The protected characteristics are “age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation”.

Obesity in the UK 

Overweight can be defined as weighing more than the average person, whereas obesity is having a large Body Mass Index according to the NHS.

The Health Survey for England 2017 assessed that in England, 28.7% of adults are obese and a further 35.6% are overweight but not obese. The NHS in 2018/2019 saw a 23% increase in hospital admissions where obesity was a factor.

Although initiatives are being taken to motivate young people and children, in particular, to engage in more exercise, as well as changing attitudes to living a better healthier lifestyle, obesity is on the rise. The needs to reflect changing society and take into account this factor.

The law is absent as to the issue of weight

Employers or colleagues may sadly bully or harass against a person due to their weight e.g an employer may terminate one’s contract or not hire them due to their weight. However, under the current law, this would be unlikely to qualify as discrimination.

The law fails to address this, leaving individuals being subjected to negative prejudice and social rejection within their workplace. Arguably, body-checking employees should be removed, and candidates should be assessed on their ability to do the work over their looks. However, there are legitimate health concerns or capacity concerns which means that an employer could legitimately query whether an employee can work within their role (eg. A manual labour role).

Disability is, however, a protected characteristic. There may be an argument that you are disabled under the Equality Act 2010. A person is disabled where they have a “physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.” In the past, the law has taken the stance that obesity does not qualify as a disability. This is because the condition generally does not meet the “long term” test. However, if a person has a medical condition(s) that is linked to their obesity, then they may qualify as having a disability in accordance with the definition set out by the Equality Act 2010.

Hiring or firing, because of body type? 

The airline industry and certain employers are known for requiring attractive body figures to promote their business as they argue that this yields greater profits e.g. clientele buy more drinks from attractive female employees, therefore those industries have, for a long time, base their hiring decisions off such. This causes great harm to e.g. air hostesses, bar waitresses etc who later increase weight over time, rendering them to lose their jobs or overweight individuals who are turned away from jobs. We all require job stability and this discrimination should be removed to eliminate disparate treatment against overweight people.

Changes in physical appearances should not be a ground for employment termination.

To fully harmonise the law and make it fully equal, should provision be made to consider size? Given that there is a link between obesity and poverty, this may also reduce socio-economic inequalities.

The balance between body positivity and being your healthiest self. A person should not be discriminated against for the way they look, nor should someone’s ability to do the job or bring value to the business be a department on the way they look. As what makes someone who they are, their skills and ability are beyond their looks. Having said that, obesity is a serious medical condition that causes many life-threatening complications therefore everyone should always strive to be their healthiest self.

Being positive and confident about your body comes when you are confident that you are working every day to be your healthiest self. When you know that you are living a healthy balanced lifestyle you will become confident within yourself, as you feel healthy from within. Having a so-called ‘good body’ is a by-product of living a healthy lifestyle.

At Thrive we promote health and wellness through regular active events like team yoga or walking events. We also have step count competitions within the office to give us a goal and keep us motivated to keep moving. As office work can be a very stationary job it’s very important to be mindful of keeping yourself active. This can be done by taking walks on your lunch break for example.

Do you know what to do when it comes to your employee’s mental health?

Do you know about Thrive Wellbeing?

Thrive Wellbeing is a mental health programme helping businesses to change their approach to employee mental health. Our 12-month wellbeing programme package is dedicated to helping you and your team champion mental health and offers something for everyone. The Thrive Wellbeing Programme has various online modules to complete, with guides for management, template policies, forms and emails, all ready to download and use in your business. As well as all these resources at your fingertips, you’ll receive regular email and video updates to help you keep the conversations going, and you’ll have the opportunity to take advantage of 1-2-1 support from a dedicated, qualified solicitor.

This is an online interactive platform to create a healthy and inclusive workplace, it offers expert advice and support on mental health in the workplace! The programme has outstanding long-term benefits for businesses in terms of promoting a healthy and barrier-free workplace leading to reduced sickness absences and increased productivity amongst your staff!

Please get in touch here to invest in your business and your employees enquires@thrivelaw.co.uk

References

https://www.gosschalks.co.uk/blog/2015/03/31/bickerstaff-v-butcher-uk-employment-tribunal-rules-obesity-is-a-disability

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