‘Sizeism’ rampant in UK workplace, but EU law may offer protection

Savaged for her size: pop singer Meghan Trainor. Yui Mok / PA Archive/Press Association Images

When it comes to body size, some people just can’t win. Ask Meghan Trainor, whose song, All About That Bass was such a huge hit in 2014. The plus-size singer-songwriter was savaged in the media for “encouraging obesity” and “skinny shaming”.

Trainor remained upbeat – millions of sales will do that for you – but it’s not news that people of non-ideal-weight (overweight or severely underweight) suffer persistent discrimination in the workplace, and in other contexts. Several decades of research, across several countries, confirm this.

One US-based study showed that obese women earn on average $19,000 a year less than women of average weight – that’s a significant disadvantage.

The evidence suggests that this discrimination arises from attitudinal assumptions and negative inferences made about non-ideal weight individuals, on the basis of their membership of a group. For example, they are assumed to be insufficiently self-motivated to make good employees.

But is that discrimination unlawful in the UK? Could someone bring a claim in employment law if they had suffered discrimination or harassment in the workplace because of their weight?

That’s the question that Employment Judge Philip Rostant and I set out to answer in our Modern Law Review article. At the moment, there is no legal protection from workplace discrimination merely because you are obese, or even just overweight – either from UK or EU law.

But discrimination on the grounds of disability has been expressly covered by UK law since 1995. It is now prohibited under the Equality Act 2010. The definition of disability under the Act is based largely on a “medical model”, meaning that disability arises from the effect of an “impairment” on function.

For instance, a person who has impaired mobility is disabled because their ability to walk is limited. Excess weight or emaciation is not itself a disability, but it may give rise to impairments. If non-ideal weight can be shown to have a substantial adverse effect on the ability to carry out normal day-to-day activities, such as walking or lifting and carrying, it may constitute a disability under the Act. But most overweight people are not impaired in that way, so the Equality Act 2010 offers them no protection.

European Union to the rescue

EU law offers more. It embraces a “social model” of disability, drawing from the UN Convention on the Rights of Persons with Disabilities (UNCRPD) 2006.

The “social model” points to the interaction between impairment and barriers erected by society which create the disability. A person with a mobility impairment is disabled by some aspect of society (say, the built environment) which makes it difficult or impossible to mobilise without the ability to walk.

People with impairments also face stigmatisation and barriers to their full participation in society as a result of their minority group status or from falling victim to stereotypical assumptions in the same way as women or people from black or minority ethnic communities. We use the term “social model” to refer to any model which defines disability in that way. Because people of non-ideal weight suffer stigmatisation, we think they may well fall within the social model definition of disability.

The UNCRPD has been an “integral part of” EU law since 2010. A 2013 decision of the European Court of Justice establishes that the social model of disability applies in EU law – and this was confirmed in subsequent cases.

UK courts are under an obligation under the European Communities Act 1972 to comply with relevant EU law. They must – in so far as is possible – interpret the Equality Act 2010 to be consistent with EU law. In this instance, it does strain the language and the scheme of the Act to interpret it so as to bring a social model of disability into UK law. Because of that, the UK courts may decide that it isn’t possible to interpret the Act consistently with EU law.

Right yet to be tested in court

If UK law is interpreted to be inconsistent with EU law, EU law is “supreme”. Relevant national law must be “disapplied” (ignored). Individuals then have rights under the relevant EU law, but only in a claim against a public employer. Our argument is therefore that someone employed by a public employer (which accounts for around 19% of the working UK population) has a right not to be discriminated against on the grounds of their weight. That would be so even if their weight does not give rise to a disability on the UK “medical model” definition. This is yet to be tested in the courts.

For everyone else, there is a possible legal argument based on a general right to non-discrimination in the EU’s Charter of Fundamental Rights. The European Court of Justice has suggested in some recent cases that this right is enforceable by individuals against private employers in certain narrow circumstances. Obviously, that argument also needs to be tested in the courts.

Is non-ideal weight discrimination unlawful in the UK? We don’t know for sure. What would be needed now is a litigant with the resources to test the arguments.

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