A few years ago, a Civitas report estimated that around 73 per cent of the population have ‘protected’ status, in that they may be able to claim that they are discriminated against in employment. Such grounds include gender, age, ethnicity, belief, sexual orientation and disability. This last category appears to have been significantly extended last week by the European Court of Justice Advocate-General’s opinion that obesity could amount to a disability.
The verdict concerned the case of a grossly overweight Danish childminder who was sacked because it was claimed that he could no longer fulfil his duties: he needed help to tie up children’s shoelaces.
The Advocate-General pointed out that the verdict only concerned those who are ‘morbidly obese’, which he defined as having a body mass index of more than 40 (the childminder’s BMI was 54). Moreover the judgment is not yet binding on the UK, as the European Court of Justice has not yet formally agreed to a ‘decision’ on the case.
But it does look as if the obese are heading for recognition as yet another protected category. This means that employers will have to think carefully of the implications. They will have to think about the physical demands of the job, and whether existing employees will need to be offered advice, redesigned desk space, special equipment and so on. In advertising posts, great care will have to be exercised in writing job descriptions and person specifications. Staff will need retraining in dealing with fellow employees and the general public, and policies will have to be developed on the use of language. Calling someone ‘fatty’ may well have to become a disciplinary offence; indeed it is not beyond the bounds of possibility that it could eventually become a hate crime, leading to criminal prosecution. And, to avoid possible discrimination claims, businesses will have to think about whether the obese are over-represented amongst redundancies and the low-paid, and under-represented in promotions.
Court judgments of this kind have already significantly expanded the scope of protected status. When the Disability Discrimination Act went through Parliament, MPs were assured that stress would not be considered a disability, but now a sizeable proportion of tribunal claims cite stress. A similar process has widened the scope of protection for beliefs.
It is difficult to argue against the gradual expansion of protections of this kind; those who do are denounced as sexists, racists, homophobes, Islamophobes and so on, and tend to be shunned not only by Guardian readers but by a wider public who go along with the tide and shrug their shoulders. And I do have a lot of sympathy with people who find it difficult to control their weight: they are often unhappy and they certainly do have real health problems which worsen with time.
But there are economic implications of this. Having to give special consideration to the obese will change market outcomes, and not necessarily to the benefit of all who are supposedly protected.
Like all such mandates, there are predictable outcomes. Standard analysis suggests that giving special status to a group raises the costs of employing them and thus makes employing them less attractive. Laws cannot prevent this being reflected to some degree in reduced employment, reduced wages or a combination of the two. Evidence suggests that disability legislation in the USA primarily reduced employment of the disabled. If the obese are given special protection, employers are likely to be wary of employing them. In small businesses, where jobs are often not advertised and subject to scrutiny, overweight people will find it more difficult to get jobs. The public sector, where employment law is more strictly enforced and organisations are subject to the Equality Duty spelt out in the 2010 Act, will tend to be oversupplied with obese applicants. It will take more on, and over time will be subject to relatively more tribunal claims than the private sector – just as is already the case with all the other protected categories.
A final consideration: how far is seeing obesity as a disability consistent with trying to promote better health? I discussed in a blog post last year a very different approach which the private sector had taken to compulsory health insurance in the USA. Because overweight workers increased employers' risk, and therefore insurance premia, some employers were policing their staff's weight and fining them for excess poundage. I pointed out that in principle we could do the same by having higher tax rates for the obese. My tongue was in my cheek, but I'm not sure the idea was any worse than treating the overweight as passive victims in need of protection.