Here are the six top pointers employers need to know to help them manage obesity effectively and minimise the risk of exposing their business to claims for unlawful discrimination or breach of contract.
1. Obesity is not a disability, but the resulting impact might be
Both European and UK legislation have considered that obesity on its own and being obese is not a disability, but decisions have indicated that certain levels of obesity could be. The Equality Act 2010 defines a disability as a physical or mental impairment that has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities. This means if the impact of an individual's obesity is so severe it affects their daily life then the person may be classed as disabled.
This was demonstrated clearly in Walker V Sita Information Networking Computing when the employment appeal tribunal (EAT) upheld Mr Walker’s appeal and found him to be disabled. He suffered from multiple conditions alongside his obesity, which when combined affected his ability to carry out everyday activities.The EAT was clear to point out that it is the effect of the impairment, rather than the cause, which is the determining factor.
2. There is a clear link between mental health and obesity
Research undertaken by the NHS has shown a link between obesity and depression, with the mental health of women being more closely affected by obesity than men.
This link is reinforced with results from a separate study revealing the prevalence of obesity and depression going hand-in-hand in children, with the link growing stronger throughout childhood.
Mental health can also be considered a disability if it meets the requirements in the Equality Act – of being a long-term condition capable of lasting more than 12 months or that it could recur.
3. Employers have a duty of care to consider and should make reasonable adjustments
Where an employee is obese and has a condition that renders them disabled, then an employer has a legal obligation to consider and make reasonable adjustments to enable the employee to remain at or return to work.
Even if they have not been formally notified of a disability an employer may have ‘constructive knowledge’, which would mean they have been made aware or should have known about the potential disability from the information available.
4. 'Banter' and office jokes about obesity could lead to claims
It is easy to see how an obese person might bring a disability discrimination claim, but this is not the only risk for employers.
Banter in the workplace may lead to claims of bullying, harassment, grievances and disputes. This was highlighted in Evans v Xactly, when Evans brought a claim after being called a ‘fat ginger pikey’. In this case the EAT found that there was a culture of this level of banter in the sales team and that Evans had previously participated in the banter without issue. He also failed to put forward evidence linking his weight and his disability, so while the language had the potential to be discriminatory in this case it wasn’t.
With the rise in obesity and the increasing litigiousness of individuals, it’s likely we will see more claims involving ‘fat jokes’, name calling, and bad language.
5. Managing obesity in the workplace doesn't have to cost a lot
The reasonable adjustments an employer could consider making to support an obese employee include providing parking spaces closer to the office, bariatric equipment, or altering duties to reduce walking. Flexible working could also be considered if travel is difficult during busy commuting times.
Employers also need to ensure that their policies support obese employees and reduce the risk of successful discrimination claims. This could include referencing obesity in anti-bullying and harassment policies, training on the language and behaviour you expect from staff, and a social media policy that incorporates online behaviour standards. Employers should already be providing training on diversity and inclusion, and this can be extended to include obesity.
6. Employers can help staff before obesity becomes an issue
It is possible to help employees manage their health before it starts to affect their ability to work. A wellness check is like an MOT – it checks for key indicators of conditions like diabetes and the results allow employees to make changes to their lifestyle before it puts their health at risk. Employers benefit from a healthier workforce and a lower risk of long-term health problems and disabilities becoming an issue they need to manage.
Employers can also provide healthy snacks, offer gym memberships, or encourage staff to take walking meetings to promote movement and activity throughout the working day.
Pam Loch is a qualified lawyer and the founder of Loch Associates Group
