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Ten per cent of
firms were even reluctant to let an obese employee meet a client. It all
adds up to a potentially dangerous prejudice towards a large part of the
workforce. By 2010, it’s likely that more than a third of all British
adults may be classed as obese.
As the obesity
figures rise, employers are likely to face more claims of discrimination
from staff who feel they have been treated unfairly because of their
weight.
The warning signs
are already there. Recently, a postman who weighed 25 stone and was unable
to fit into his van won a claim for unfair dismissal. Medical reports
confirmed that he was fit to work so he was reinstated and awarded £24,000
compensation.
Yet obesity can
present real problems for employers. According to the National Audit
Office, 18 million working days were lost to sickness due to obesity in
1998, the last date for which figures are available. The overall cost to
the economy and society was over £2bn.
Unlike America,
there is no specific law in Britain outlawing discrimination on the
grounds of obesity and so far the government has not announced plans to
introduce one. Nevertheless, firms could still find themselves facing
legal action if they discriminate against overweight employees because
there is already considerable protection under existing legislation.
The most dramatic
change in the last year came with Disability Discrimination Act 2005. It
removed the previous requirement that mental impairments had to be
clinically well recognised before they could be classed as disabilities.
It means that obesity could now be classed as a disability if it can be
shown that it is caused by anxiety, depression or an eating disorder.
Obese people might
also be classed as disabled under the Act if their obesity causes
illnesses such as diabetes or heart disease.
In these
circumstances an employer would have to make reasonable adjustments to
meet the needs of the overweight person as required by the Disability
Discrimination Act. If they fail to do so then an employee who feels
they’ve been treated unfairly could bring a case of discrimination on
the grounds of disability.
There is, however,
an obligation on employees to make sure they are doing everything they can
to modify their behaviour so they can carry out their duties properly. For
example, if there is no medical reason why an obese person shouldn’t eat
more healthily and take more exercise then a tribunal may find that they
are not disabled and not entitled to protection under the act.
Apart from the
disability act there might be scope for legal action on the grounds of sex
discrimination and equal pay. A recent study by researchers at Guildhall
University showed that overweight women were paid less than their slimmer
colleagues. The same discrimination did not affect overweight men.
Employment law
relating to dismissal might also offer some protection. For example, if an
obese employee was bullied or generally treated unfairly he might be
entitled to claim constructive dismissal.
In spite of all the
potential pitfalls, however, employers are entitled to dismiss employees
whose obesity prevents them from doing their job properly. However, firms
should tread carefully before taking any disciplinary or dismissal
procedures. It is vital to first check if there is a genuine medical
reason for the obesity which might classify the employee as disabled.
The employee should
be offered help to lose weight and given time to do so. He should also be
warned at the beginning of the process that failure to lose weight could
result in dismissal.
As in all matters of
staff relations, it is essential to follow the correct procedures.
Contact Sally on 0115 9886736 for more information.
Email :
Sally Laughton | 
