Why obesity can be a weighty problem

As the percentage of the population classed as obese rises each year employers are likely to face more and 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.

Recent research by the Chartered Institute of Personnel and Development found that many firms were prone to discriminate against obese people because they felt that obesity indicated laziness and lack of drive.

A survey carried out by Personnel Today magazine found that 93 per cent of the 2000 firms questioned would rather appoint a job applicant of normal weight than someone who was obese but otherwise had the same qualifications and level of experience. Half the firms thought obesity affected productivity and that overweight people lacked self-discipline.

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 2003, 21 per cent of males and 24 per cent of females were classed as obese.

When you put those rising numbers alongside the kind of attitude revealed in the survey then it’s easy to see how problems can arise.

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 perhaps even an eating disorder.

In this case, not only fat people but thin people suffering from illnesses such as anorexia could bring a case. 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 may beare 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.

Sally Laughton is a Solicitor within our Employment department at Andersons Solicitors in Nottingham. She can be contacted on slaughton@andersonsolicitors.co.uk or tel: 0115 988 6736

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