Author: Caroline Philipps
This article was published in www.screentrademagazine.com / Autumn 2015 / screentrade
The Equality Act 2010 prohibits discrimination on the basis of certain protected characteristics, for example sex, race, religion and disability. Obesity is not one of those specified protected characteristics. However, when considering a case originally brought in a Danish District Court, the European Court of Justice (ECJ) recently held that obesity may amount to a disability and therefore it may be unlawful to discriminate against someone upon that basis.
To consider an example scenario: a cinema management team introduces a policy of not recruiting people over a certain weight to be cleaners because those individuals often find cleaning tights spots in amongst the cinema seating difficult. The first thing to consider is whether the obese individual may be disabled as defined under the Equality Act.
Certain conditions, such as blindness, are deemed disabilities under the same, but if a condition is not expressly stated to amount to a disability (as is the case with obesity), then a person will nonetheless be deemed to be disabled if:
The key issue for the cinema to consider when assessing disability is how the individual is limited by their weight. This is clearly more difficult to do with a job applicant, who is also protected by the law, as opposed to an existing employee, but it is nonetheless an exercise an employer has to undertake in order to decide whether an individual is protected by disability discrimination law.
Discrimination – Direct or Indirect?
There are a number of forms discrimination can take and if the cinema didn’t recruit overweight cleaners simply because they didn’t like recruiting obese people, that would be directly discriminatory. However, what is more commonly seen in the workplace is a less obvious form of discrimination known as indirect discrimination. Indirect discrimination occurs when an employer implements a policy – known as a provision, criterion or practice (PCP) – which affects one group of people less favourably than another.
In our scenario the cinema’s weight limit policy clearly places obese people at a disadvantage as compared to others who are not obese and who weigh less, because the obese group will have had access to the cleaner position restricted.
However, whilst direct discrimination can never be justified, indirect discrimination can be. The cinema must show that it had a legitimate business aim and the PCP was an appropriate and proportionate way of achieving that aim. The most obvious legitimate aim here is providing excellent customer service. If obese cleaners find it hard to clean those difficult-to-reach areas it could lead to customer complaints or worse an unfavourable health-and-safety finding, and thus putting the cinema at risk of being exposed to costly liability claims.
The cinema must also consider whether there is an alternative approach, one which removes the disadvantage caused to obese people e.g. might the cinema allocate cleaning staff specific areas in advance of each shift, so that obese individuals are only assigned to clean, for example, the foyer or concession areas? Compensation in discrimination claims is uncapped and therefore can be potentially very costly for employers. If you are in any doubt about your obligations in relation to disabled employees, do seek specialist advice.
Caroline Philipps, Associate, Fladgate LLP (email@example.com)