A waitress in one of our chain's restaurants has left and claimed constructive dismissal. She had commented to her manager on a number of occasions that she was unhappy as she was constantly teased by other staff about being overweight. The manager did nothing about it and dismissed her concerns, suggesting that the teasing was nothing but banter.
Can teasing someone about their weight really constitute grounds for constructive dismissal? If so, what can you do to defend yourself against such a claim?
There is no specific UK legislation which gives protection to employees against obese discrimination, often referred to as "fattism". However, there are various existing employment rights that the waitress could rely on to establish a claim against her employer.
The waitress will be able to bring a constructive dismissal claim only if she has more than one year's employment with you. Such a claim can be brought where an employer behaves so badly towards the employee that the contract of employment is destroyed. Therefore if, as suggested, the waitress has been constantly teased or bullied about her weight by other staff, it may be that because you have done nothing at all about this, the implied duty of mutual trust and confidence has been breached, and the waitress is likely to have a constructive dismissal claim against you.
She may also potentially have other claims that do NOT require any length of continuous service to bring a claim, such as under the Disability Discrimination Act 1995 (DDA), Sex Discrimination Act 1975 or Race Relations Act 1976.
Where obesity or weight gain is caused by a medical condition, for example, an underactive thyroid, it may fall under the DDA.
Take any allegations of bullying or harassment seriously and, as a minimum, investigate the allegations, ensuring that you keep everything documented. Be sure to treat the person making the allegations sensitively. If harassment and bullying are taking place, those responsible should be reprimanded and all employees should be made aware that this behaviour will not be tolerated.
Managers should make sure staff are aware of the company's equal opportunities and harassment policy, and if there is no policy, introduce one as soon as possible, making sure that employees are aware of its content and comply with it.
Companies should consider investing in training for both managers and employees so that they are aware of the consequences of "teasing" and the potential claims that can result.
- Make employees, particularly managers, aware that obese employees may be protected by the law.
- Ensure that managers are vigilant and address any teasing or banter about an employee's size.
- Ensure that any complaints of teasing are investigated.
- Seek medical advice if an employee's weight begins to affect their work.
Legal action is available to overweight employees if they are suffering in their employment. Such claims can put employers to significant expense in terms of legal fees and damages to the wronged employee, as well as cause adverse publicity. It's better to act now and prevent bullying in the workplace before it becomes a problem.
Employment solicitor, Vizards Wyeth Solicitors, 31-33 Lime Street, London EC3M 7HT
020 7903 5797 firstname.lastname@example.org