Imagine the situation. You’re on the train, perhaps commuting to work, travelling to see friends and family, or on a day out. Whatever your reasons for being on that train, imagine you are handed a card stating that you are “a fat, ugly human”. How would you feel? What would you do?
For some train users, this very scenario became a reality.
Yesterday, news of an ‘organisation’ targeting users of the London Underground by handing out ‘fat shaming’ cards, made headlines across the UK.
There is no doubt that the actions of those responsible are malicious and mean spirited, but one question remains: what can be done about it?
Under the Equality Act 2010, if a person can show that they have been treated ‘less favourably’ as a result of a protected characteristic, then they may have a claim for discrimination.
Protected characteristics can include a person’s race, religion or belief, sex, disability, age, gender reassignment, marriage and civil partnership, sexual orientation or pregnancy and maternity.
Against the backdrop of the ‘obesity epidemic’, that has grown exponentially across the UK in recent years, there have been calls for clarity over whether obesity can be considered to fall under one of the definitions of a protected characteristic, namely disability, under section 4 of the Equality Act 2010.
Making reference to a recent decision by the European Court of Justice in the case of Karsten Kaltoft, The Northern Ireland Industrial Tribunal in Bickerstaff v Butcher NIIT/92/14 unanimously decided that a claimant should be considered disabled as a result of his morbid obesity condition - for the purposes of the Equality Act 2010 - and upheld his claim for harassment in the workplace.
This was considered to be a landmark case in the UK and significantly widens the definition of disability and its scope for its application in practice.
‘Fat Shaming’: what can be done?
Despite this development in the area of Employment Law, it remains to be seen how the civil courts will deal with claims against companies providing services or organisations exercising public functions.
Those reported to have been engaging in the act of ‘fat shaming’ on the London Underground appear to be individuals, or a group of individuals, with no affiliation to a company providing services or an organisation exercising a public function. As such, it is my view that it would be extremely difficult to pursue a claim in the civil courts as a result of their behaviour.
Therefore, despite the behaviour of these individuals being offensive and wholly unacceptable to many, by way of legislation and case law, those affected would not be able to seek remedy by claims in the civil courts under the Equality Act 2010.
Nonetheless, if you have been subjected to this type of behaviour, you should inform the police. Actions such as these are likely to be considered anti-social-behaviour and could result in legal action being taken against the individuals or group responsible.
If you would like further advice, or if you believe you have been discriminated against contact the Stephensons discrimination team on 0345 122 8665.
Written by Gemma Wilson and Maria Chadwick