About one in five adults in the UK is dangerously overweight. Severely overweight people have a greater susceptibility to numerous illnesses which can affect performance in the workplace, and employers need to be careful when handling such situations.
A recent survey found that most employers preferred to offer jobs to workers of a "normal weight". The survey indicated negative attitudes towards overweight employees and job applicants, with many employers believing that obesity negatively affects employee output and overweight people lack self-discipline.
There is currently no legal protection against "fat" discrimination as there is for other forms of workplace discrimination, such as age, sex, race and disability.
However, some parts of the current law can be used to help protect overweight job applicants and employees, in particular the Disability Discrimination Act 1995 (DDA). Under the DDA, disability is broadly defined: "a person has a disability… if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
Therefore, where a person's obesity has lasted at least 12 months and substantially adversely affects their ability to perform everyday activities, then it could be classed as a disability.
If the obesity is due to a medical problem, it's very likely that the individual will be covered under the DDA, which will give the employee protection against dismissal or any other detriment.
If an employee is off sick frequently because of weight-related illness or treatment, then to discipline or dismiss that employee because of such absence could be classed as unlawful discrimination.
Even if underlying medical reasons have been ruled out, employers cannot dismiss an employee because of their size. It must be proved that their obesity is undermining their capability to do the job. For example, an overweight engineer might be incapable of undertaking their duties if required to regularly climb down manholes.
The employer is also under a duty to make reasonable adjustments at its premises if these place the disabled person at a substantial disadvantage.
Under the DDA, obesity might also be due to "a reason related to a disability". For example, if overeating were a direct consequence of severe depression, then any discrimination on the grounds of the individual being overweight would be because of a reason related to a disability (ie, the depression) and, therefore, discriminatory.
If an employee's weight is related to a disability, they should not be subjected to jokes about their weight as this could be viewed as harassment. Both the perpetrator and the company could be liable for these actions.
To reduce the risk of a claim, employers should ensure that:
- Their equal opportunities policy is up to date.
- It states that the policy applies to all employees, at all levels, and should be enforced accordingly.
- Employees are aware of the consequences of breaching the policy (ie, disciplinary action) and are trained in the policy and know who is responsible for its enforcement.
- Training is provided to managers in order to enforce the policy.
It is important that employers do not fall foul of the DDA.
Consequences for the employer might include compensation for injury to feelings (usually anywhere between £500 and £25,000) and, in the event that an employee is dismissed or resigns as a result of the discriminatory act, compensation for future loss of earnings. There is also the risk that an employer will have their reputation tarnished by such action.
Nathan Thomas, associate solicitor, Kimbells