The recent demonstration by the Size Acceptance Movement has raised some thought-provoking issues. Unlawful or not, there is no doubt that size-ism and look-ism go on in workplaces, but what can realistically be done? James Williams offers a legal perspective.

The Size Acceptance Movement held a demonstration in front of the Mayor of London’s office on 19 October 2009, calling for the introduction of legislation outlawing workplace discrimination against the overweight. The Mayor’s office and the government are yet to comment on the demonstration but it raises some intriguing questions that are worthy of consideration.

Current legislation prohibits discrimination against employees or prospective employees on grounds of sex (including marital status, civil partnership and gender re-assignment), race (including colour, nationality and ethnic origin), disability, sexual orientation, religion or belief, and age. However, it does not cover less favourable treatment or victimisation on grounds of weight (so-called ‘size-ism’) or other aspects of personal appearance (commonly known as ‘look-ism’).

In some circumstances, it may be possible for individuals to bring claims relating to issues of size-ism or look-ism using existing employment laws. For instance, there has recently been a well-publicised case involving a one-armed employee whose trendy retail employer took her off customer-facing duties, on the basis that her appearance might be off-putting to customers. Equally, a female employee who considered herself to have been less favourably treated than a slimmer comparator might also be able to show that an overweight male employee would not have been treated in the same way, in which case she could bring a sex discrimination claim on this basis. Alternatively, an employer who (consciously or subconsciously) treats a younger employee who falls short of its employee image expectations less favourably than it treats fuller-figured or aesthetically-challenged older employees could face an age discrimination claim. Nevertheless, an employer engaging in size-ist or look-ist practices is generally unlikely to be found guilty of unlawful discrimination under the current statutory regime. Despite SAM’s efforts to highlight the issue, it is probable that this will remain the case for the foreseeable future, for a number of reasons.

Firstly, the government has recently proposed major new anti-discrimination legislation in the form of the Equality Bill, which is likely to come into law during the course of 2010. This will replace current legislation with a single Act dealing with all types of unlawful discrimination, as well as introducing measures to address the gender pay gap. If there had been any appetite to extend the remit of discrimination legislation to cover size-ism and look-ism, this would presumably have been done during the preparatory stages of this Bill, before it was introduced to Parliament.

Secondly, even if the government did have a desire to introduce legislation to prevent less favourable treatment on grounds of weight or appearance (or, perhaps more probably, was required to do so by the European Union), drafting such legislation would be problematic. Defining the point at which an overweight person becomes entitled to employment protection would be extremely subjective and, even if an objective measure (such as Body Mass Index) was used, this could produce some fairly arbitrary results. For example, BMI does not take body type into account and the scores of short and/or muscular individuals tend to be disproportionately high.

Defining the remit of the legislation would be even more of a minefield if it was extended to cover look-ism. It is difficult to see any objective standards that might be used to assess personal appearance and, in the absence of such guidelines, Employment Tribunals would be required to make a finding as to whether a Claimant was sufficiently unattractive to benefit from statutory protection. It is not a prospect one would expect them to relish.

Finally, public policy considerations would also neeed to be taken into account and there would clearly be some conflict between the introduction of such measures and the National Health Service’s ‘fight against obesity’. Current disability legislation specifically excludes alcoholism and drug addiction from the definition of a disability to ensure that those who might be seen as contributing to their condition are not provided with greater protection than others. It is not impossible to see similar approach being taken so that the overweight are not ‘rewarded’ to the detriment of their thinner and (it would be argued) healthier colleagues.

Although SAM’s protests are unlikely to result in any change in the law or widen the potential liabilities faced by employers, they nevertheless raise some thought-provoking issues. Unlawful or not, there is no doubt that size-ism and look-ism go on in workplaces across the country, with the result that many decisions relating to the recruitment and promotion of staff are being taken on grounds other than merit. Although research has suggested links between employees’ weight and productivity/absenteeism levels, these only become statistically significant in the case of clinical obesity. It therefore appears that many employers are losing out on talented and hard-working individuals as a result of lazy sterotyping, which, in today’s competitive marketplace, seems unfortunate and surprising.

James Williams is a Partner at Archon Solicitors LLP