Is your body a protected characteristic?

01 Sep

The European Court of Justice will soon be deciding whether discrimination on grounds of obesity is unlawful. Meanwhile there have been calls to stop treating workers with tattoos less favourably. Are protected characteristics about to go large?

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The European Court of Justice will soon be deciding whether discrimination on grounds of obesity is unlawful. Meanwhile there have been calls to stop treating workers with tattoos less favourably. Are protected characteristics about to go large?

A recent BBC editorial has asked whether it should be made illegal to discriminate against workers who have tattoos. Many businesses have policies which ban visible ink: if their employees don’t cover up their body art then they could face disciplinary action, be forced to redeploy to a non-customer facing role, or even be dismissed.
Of course, dismissal for these reasons might be unfair if the employer doesn’t follow proper procedures or policies. An Employment Tribunal might also consider that the sanction of dismissal was outside the range of reasonable responses. All this will depend on the particular circumstances of the case.
Importantly, protection against unfair dismissal doesn’t provide a remedy in cases where, for example, someone is not offered a job in the first place because they have tattoos. Under the Equality Act 2010, subjecting a worker to less favourable treatment like this could be unlawful – but only if the discrimination was because of one of the protected characteristics defined in the Act. These characteristics include gender, race, religion, disability and sexual orientation, but don’t extend to a person’s appearance per se. This seems to leave no remedy for the unsuccessful job applicant with body art.
Even if skin markings were to become a protected characteristic, employers would likely argue for the provision of an objective justification defence (as with age discrimination). Some businesses will have legitimate operational reasons for not wanting tattoos in the workplace, perhaps because they appear unprofessional to customers or display offensive imagery or messages.
Such policies are driven in part by prejudice against people who simply look different. That said, tattooed skin differs from the statutory protected characteristics in that it results from an individual choice (and is capable of removal). In some cases, however, tattoos may be indelibly linked to a person’s identity. Where skin markings are an integral part of a person’s race, religion or beliefs, they may yet enjoy some protection under the Equality Act. For example, rejecting a Maori job applicant because of their tribal tattoos would almost certainly amount to either direct or indirect race discrimination under the current law.
However, anyone seeking to argue that tattoos could potentially amount to a disability will find that under the Equality Act 2010 (Disability) Regulations 2010 a disfigurement which consists of a tattoo cannot be regarded as a severe disfigurement (and is therefore precluded from being a disability).
Alternatively, tattooed workers could run human rights arguments (relying on Article 10 of the European Convention on Human Rights, i.e. the right to freedom of expression), particularly where such a ban is imposed by public authorities.
However, unless the law changes, the path of least resistance for those decorated individuals who find themselves at odds with employers is either to look elsewhere for work or endure the removal of any visible ink. The latter is currently the fate of swathes of young men drafted in for National Service in the United Arab Emirates: they are having their tattoos removed because of a national ban on body art in the military. []
The issue of anti-obesity discrimination has also been hitting the legal headlines. What people put inside their bodies is perhaps an even more divisive topic than what people choose to cover them with. Although many would argue that obesity is also the result of a lifestyle choice, it is of course a genuine physical condition which can be caused by underlying health problems. But should it be treated as a disability or even a protected characteristic in its own right?
That is the question being asked of the European Court of Justice in a case referred to it by a Danish court ( Mr Kaltoft had claimed that he was dismissed from his job as a childminder because of his obesity (he weighed 160 kg and was classed as “severely obese”), but is his physical size protected from workplace discrimination under EU law?
The Advocate General (AG) recently delivered his Opinion on the matter, which is usually a good indication of how the ECJ will ultimately rule. The AG’s conclusions can be summarised as follows:
1) EU law does not include a general principle prohibiting employers from discriminating on grounds of obesity in the labour market;
2) Severe obesity can be a disability covered by the protections afforded by EU law if it hinders an individual’s full and effective participation in professional life on an equal basis with other workers.
This is not at odds with current UK employment law. In 2012 the Employment Appeal Tribunal (EAT) ruled  that while obesity is not a disability per se, someone who is obese may suffer from a range of impairments which satisfy the legal definition of disability (because they have a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities). Further, the EAT held that the cause of a person’s obesity should be irrelevant as a matter of law; it is the effect not the cause which is pertinent to establishing disability (see Walker v Sita Information Networking Computing Ltd EAT/0097/2012).
The AG is of a similar opinion: if the origin of a disability were taken into account, then disabilities arising from self-inflicted traffic or sporting injuries would also be excluded from protection against discrimination under EU law.
As it stands, obesity can already be a disability so employers should beware of discriminating against obese workers and also consider making reasonable adjustments where appropriate. As for anti-tattoo discrimination, for now that remains a question of taste.

Adrian Peck

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