By Dean Bonnar
We live in a culture in which we are bombarded on a daily basis with notions of what constitutes an acceptable figure and weight. This reality, coupled with a rise in obesity levels, has led to a culture of “fat-shaming”, with overweight and obese people being lambasted in the media on a daily basis and, in turn, by the public and the State. This culture pervades all aspects of everyday life, including employment.
In Northern Ireland, we have, for some time had legislation prohibiting discrimination in employment on the basis of age, disability, gender, race, religious or political affiliation and sexual orientation. Yet, there has hitherto been little protection for people who face discrimination because of being overweight or obese.
However, it was recently decided by the Court of Justice of the European Union that obesity can constitute disability under certain circumstances for the purposes of anti-discrimination legislation. The case of Kaltoft v Municipality of Billund  involved a child-minder who alleged that he had been dismissed because he was obese. With little recourse under existing anti-discrimination legislation, he sought clarification from the CJEU as to whether obesity can be considered a disability. The CJEU ruled that, while obesity in itself cannot constitute a disability, the physical effects of obesity can do for the purposes of anti-discrimination legislation. This landmark ruling is binding on the United Kingdom and saw its first domestic application in Northern Ireland recently.
Last month, an Industrial Tribunal ruled that a person who suffers physical health problems by virtue of obesity can be considered disabled within Section 1 of the Disability Discrimination Act 1995. The case in point involved an employee of Randox Laboratories in County Antrim who had been subjected to a sustained campaign of harassment by fellow employees because of his weight. This harassment led to deterioration in his mental health, on top of existing health problems incurred due to his weight, and ultimately resignation from his post.
At this stage, it is pertinent to note that the common law already protects employees from all forms of harassment, as distinct from discrimination. The decision of the House of Lords in Waters v Metropolitan Police Commissioner  places a positive obligation on employers to protect employees from harassment by co-workers, failing which they can be held directly liable for physical or psychiatric harm suffered. Thus, one may question why the claimant took an action under the 1995 Act. Nevertheless, the decision of the Tribunal has significance beyond the sphere of workplace harassment. It means that discrimination of any kind prohibited by the 1995 Act, such as in the provision of goods or services, will be further prohibited if founded upon one’s obesity when consequential health problems exist. Thus, such individuals now have solid recourse under the 1995 Act.
That said, the rulings of the CJEU and the Tribunal offer no protection to people who face discrimination purely on the basis of their weight. Many may argue that expanding the law to prohibit such discrimination could legitimise obesity and thus hamper efforts to combat its increase. However, in a weight-obsessed culture, it is inevitable that hardworking and able people face potential discrimination on the basis of their weight. Thus, I would argue that further legislative provisions to prevent such discrimination are desirable where an overweight or obese person can demonstrate that they have suffered a disadvantage due to prejudicial treatment on the basis of their weight. However, given the State’s commitment to tackling obesity, such a move is arguably unlikely, thus perpetuating employment discrimination against overweight and obese people.
Despite this arguable gap in our anti-discrimination legislation, the decision of the Tribunal is a huge step in tackling discrimination faced by obese people in many walks of life. The rise in obesity levels is clearly worrying but with this rise comes the potential for discrimination against those who are obese. With this in mind, the Tribunal’s implementation of the Kaltoft ruling in Northern Ireland sets a positive example to the legislature and other bodies concerned with employment discrimination across the UK and Ireland.