The Equality Act 2010 affords significant protection to employees in the UK and is the key piece of legislation guiding employers when dealing with instances of discrimination. This potentially includes weight discrimination.
As so-called ‘fatphobia’ gives rise to instances of weight discrimination, it’s vital that both employees and employers are aware of what protections the Equality Act actually affords when this occurs.
What are the current protected characteristics in the UK?
The Equality Act 2010 identifies nine protected characteristics:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
Is weight discrimination unlawful in the UK?
You may have noticed that weight is not one of the protected characteristics listed above and be wondering if weight, therefore, fits into one of those categories.
So how could you be protected?
It is possible that weight could be linked to a disability, which is one of the protected characteristics.
A disability is “any physical or mental condition which has a long term and substantial impact on that person’s ability to carry out day to day activities”.
In some instances, where weight gain is linked to a disability, this could potentially give rise to what is known as an “arising from disability” claim. In short, this means that if weight gain arises from a person’s disability they could be protected, under the protected characteristic of disability.
For example, if someone has arthritis that has caused limited movement, which has resulted in weight gain, if they are subjected to unfavourable treatment because of their weight, without a legitimate aim, then it could amount to discrimination arising from disability.
Similarly, if someone is subject to unwanted conduct (such as comments about their weight) that is related to a person’s disability and those comments have the effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, it could potentially be harassment.
What should you do if you are being bullied because of your weight?
You should raise a grievance (check your company handbook to see how to do this) and if this is not adequately dealt with then you should take legal advice as to whether you have a claim for discrimination.
If you do have a claim, the next step would be to approach ACAS and start Early Conciliation before pursuing the potential claim in an Employment Tribunal.
But do be mindful of time limits—you would only have three months (less one day) to approach ACAS about bringing a claim to Tribunal.
What should employers do if they suspect bullying?
Employers should take proactive steps if they suspect workplace bullying—don’t just wait for someone to complain. A manager may want to undertake an informal investigation and understand if there are any bullying issues.
They should also check the handbook as it’s likely any company has already outlined how to deal with potential bullying matters and, ideally, has a zero-tolerance approach.
Addressing unkind or bullying behaviour could involve relocating employees and, in certain cases, result in disciplinary actions. Additionally, it’s crucial to assess the support available to the victim and explore options for counselling or psychological services.
One key thing: just because someone being bullied for their weight isn’t necessarily unlawful discrimination, it doesn’t mean that an employer should allow it to happen.
An employer refusing to do anything could breach the implied term of trust and confidence and give rise to a constructive unfair dismissal claim.
But, moreover, it’s important that an employer seeks to foster a positive work culture that promotes open communication, inclusivity and respect. Allowing bullying to go unchecked could do irreparable harm to employees and the organisation as a whole.
Could the Equality Act 2010 make it illegal to discriminate against people because of their weight?
The current protected characteristics are what the government has found necessary to include at the present time. There have been discussions previously about adding menopause, social class and care experience, but to date nothing has been amended, and in some cases, this has been actively rejected by the government.
As a result, there’s no actually reason why weight could not be added to the list of protected characteristics. But it would take significant time to make an amendment to the legislation and the government seems reluctant to make any changes in the near future.
Unless weight is linked to a disability, weight discrimination is not currently unlawful in the UK.
You can find out more about discrimination in the workplace elsewhere on our website. If you feel you have been discriminated against in the workplace and require assistance, please get in touch via enquiries@thrivelaw.co.uk.
Disclaimer
Please note this blog is for reference purposes only and is only accurate at which the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific Legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any actions. Please contact us if you have any questions on enquiries@thrivelaw.co.uk.
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