ATTORNEY-AT-LAW Khadrea Folks, who specialises in employment law, believes there’s need for changes to the legislation that gives protection to a worker against discrimination, based on health status, at the workplace.

In an interview with the Jamaica Observer, Folks explained that in the national Charter of Fundamental Rights and Freedoms protected attributes do not include health status. This means, according to Folks, the legislation does not protect a person from workplace discrimination if they, for example, are hypertensive, diabetic or even overweight.

“There are no anti-discrimination legislation and in the Charter of Rights; it doesn’t protect you against discrimination based on your weight or other health issues. There are other attributes but weight is not one of them, but it’s not a basis for termination. So, if you were to be terminated on that basis then that would’ve been unjustifiable dismissal,” Folks stated.

She added: “Under the Universal Declaration of Human Rights, when it lists the attributes, for instance, it says age, gender [and] nationality; one of the attributes that is listed says health status, but our Charter of Fundamental Rights and Freedoms does not have that and that would help so many people. Now, if you had an attribute protected in the law called health status then that will help. You don’t have to go as far as to say fat because there are still people who would say they want protection, too. So, that is something we could advocate for.”

At the same time, Folks explained that the only way an employer can exclude a person from employment because of a particular attribute is if not having that attribute is a “genuine occupational requirement.”

“For instance, an air hostess, the plane, with weight and all of that, how much cargo they’re carrying, they might have weight requirements legitimately because the occupation requires that. If you own a store that sells male and female clothing, you wouldn’t want a male to be the dressing room attendant for the females’ [dressing room]. So, if you tell a male that they cannot get this job because you’re a male and we really want a female, it would be discriminating but it has a lawful basis because being female is a genuine occupational requirement for the job,” Folks told the Observer.

Folks advised in the event that someone is experiencing discrimination at the workplace, he/she should employ a private attorney to “write to the employer to advise them of their rights”.

“The Ministry of Labour only administers the labour laws, but the courses of law is not just the legislations; you have the common law; so if you want to enforce a common law right, you have to get a private attorney to take private action for you. Suppose it is an attribute that is protected by the constitution, then you will take constitutional action and then the remedies would make an order against the employer,” Folks said, adding that the Industrial Disputes Tribunal is the only entity with authority to reinstate employment in the event of termination.