Fear of fattism: are you discriminating against obese employees?

Treating staff differently because they are overweight, or allowing colleagues to tease or victimise them, could land you in trouble.  Lucia Cockcroft spells out the risks.

Obesity is a growing problem. Currently, one in five adults in the UK is dangerously overweight – and experts predict that this will leap to one in three by 2010. As well as a greater susceptibility to illnesses such as heart disease, cancer and depression, severely overweight people face a raft of challenges – one of which is discrimination in the workplace.

Despite the escalating problem, the legal and pastoral framework in the UK has yet to catch up with the challenges of supporting obese staff. There is currently no legal protection against ‘fattism’ as there is for other forms of workplace discrimination, such as sexism and racism. Yet evidence points to the challenges obese staff face: Personnel Today’s February 2007 survey of 2,603 HR professionals found that almost half believe obesity negatively affects employee output. More than one-quarter think the issue is becoming a problem, but almost three-quarters admit their organisation is doing nothing to tackle it. What’s more, 93% of respondents said they would hire a ‘normal weight’ applicant as opposed to an obese one – if they were otherwise identically qualified.

Research into workplace image by communications consultancy firm The Aziz Corporation found that 79% of UK bosses believe there is prejudice against people who are seriously overweight: 70% think overweight people are regarded as lacking self-discipline.

Stephen Robinson, associate with law firm DWF, says obesity is becoming a pertinent issue for employers. “If someone’s excessive weight is down to a medical problem, it’s very likely the individual will be covered under the Disability Discrimination Act (DDA) 1995,” he says.

Disability Discrimination Act

The DDA’s definition of ‘disability’ is broad: a physical or mental impairment that has a substantial, long-term adverse effect on an individual’s ability to carry out normal, day-to-day activities.

While some conditions, such as alcoholism, are excluded from the protection, obesity is not – and can be caused by, or lead to, a raft of illnesses, including depression, arthritis, heart disease and diabetes.

Jeffrey Jupp, barrister at 7 Bedford Row Chambers, also points out that, once underlying medical reasons have been ruled out, employers cannot simply dismiss an employee because of their size it must be proved that their obesity is undermining their ability to do their job.

Dismissal because of a person’s weight must fall within one of the potentially fair reasons in the Employment Rights Act 1996: conduct, capability, redundancy, breach of statutory duty, or some other substantial reason.

Capability is clearly the most relevant here. Jupp says: “The question to ask is this: is the employee under-performing, and is this affecting the business?

“Merely the fact that a staff member has put on weight is not grounds for dismissal, but if this has an impact on productivity, image etc, that would be. There would also have to be compelling evidence that there was no other job within the company that the person could do.”

Once the link has been made between a medical condition and the obesity, the DDA gives the employee protection against dismissal. Employers are obliged to make adjustments to working conditions to allow the employee to continue in their job.

Robinson stresses the importance of systematic HR procedures and plenty of sensitivity ignorance is no defence and will not stop the employee bringing an effective claim. “Make sure you have an up-to-date medical history of your employees,” he says. “On recruitment application forms, there should be a question that asks if the prospective employee is aware of suffering from a disability.”

Sensitive issues

In situations where the obese person is an established member of staff, just as much care and tact should be used, says Robinson. “If necessary, suggest that the individual is examined by an independent medical expert to ascertain what the problem is and, importantly, what the employer can do to help.”

At this point, a set of softer issues come to the fore surrounding ‘wellness’, and what the employer can do to ensure a happy, healthy working environment.

A recent study by the Health Research Institute of accountancy firm PricewaterhouseCoopers found that half the employers it questioned expected to introduce or expand corporate wellness programmes over the next five years. A major driver was reducing the indirect costs associated with disability: about 2% of capital spent on the workforce is currently lost to disability and absenteeism because of chronic disease, the report estimates.

Louise Diss, chief executive of national obesity charity Toast, is quick to stress the employer’s role in doing all it can to minimise problems arising from employees’ weight.

“It’s a matter of good practice: how to motivate your workplace, and providing an environment that doesn’t encourage prejudice,” she says. “This means encouraging reasonable breaks, discounts to a gym, or water aerobics. It’s about thinking outside the box: if you want a productive workforce, treat them well.”

Another key issue, Diss says, is breaking through the stereotypes. “Look through the generalisations examine merits on an individual basis. If you’re concerned about someone’s weight, talk to them frankly: is anything bothering them?

“You don’t have to demonise fatness the issue is about a person’s wellbeing and about expecting a reasonable day’s work, instead of 12-hour days in an eight-hour time period, so that stress levels are kept manageable.”

Kent County Council is about to pilot a ‘Wellbeing, Fit 4 Health’ staff programme – part of its ongoing Work and Wellbeing Initiative. The two-year trial, beginning in the spring, will include one-to-one coaching, free salsa dancing and other exercise classes, and dietary advice. It will be available to six staff at a time.

Elaine Mason, staff care manager, says the council is keen to take an unconfrontational, holistic approach to problems such as obesity. “We want to look at people’s ability and keep track of what works for individuals,” she says. “We don’t feel it’s appropriate to approach people this programme will be voluntary and staff will come to us.

“From an HR perspective, it’s important to encourage the positive, not the negative,” she adds. “We won’t discriminate and we recognise that we have a duty of care towards staff. If we’re managing the issue well, there will be no need to worry about litigation.”

Carolyn Wilkinson, senior employee benefits manager for PricewaterhouseCoopers, says it introduced a wellbeing programme two years ago to promote healthy lifestyles.

Through newsletters, voluntary health champions at most of the company’s offices help to promote initiatives such as running clubs, healthy options in canteens, Weight Watchers groups and initiatives to explain the importance of drinking plenty of water.

“Obesity specifically isn’t on our agenda,” says Wilkinson. “It was about recognising our responsibilities and making the company a good place to work, as well as perhaps reducing some of our costs, such as insurance. We have seen a slight reduction in sickness rates since.”

Elspeth Watt, director of training and development organisation Calibre HR & Training, is unequivocal about employers’ responsibility to encourage wellbeing and activity among staff. “There’s a lot employers can do,” she says. “Encouraging people to take the stairs, eat more healthily, take a lunch break. It’s not a question of creating a nanny state – rather talking through these issues, and employers realising they do have a responsibility for the health of their staff. A lot do acknowledge this, but many others take the attitude that it’s not their problem.

“Obese people are often thought of as lazy or incapable of working to the same level, whereas in reality, weight frequently has nothing to do with performance,” she adds. “This will become an increasingly key issue for employers. Equally, I hope, attitudes will start to change.”

Employee case study

Thirty-year-old nurse Helen Redhead weighed 16 stone and was a size 22 at her heaviest, before she had a gastric band fitted and her weight fell to 10.5 stone.

Redhead says her weight problems stem back to childhood and school, where she was bullied. Her problems extended to adulthood and the workplace, where she felt undermined and unprofessional. She says: “Colleagues and mentors used to comment about my weight, both openly and behind closed doors.

“Rather than my skills and ability being talked about, it was always about my weight. It made me feel undermined, undervalued and second class. But as an overweight person, you don’t feel able to fight back people see it as a self-made problem.”

So what would have helped?

“My employer could have been an active, listening ear,” she says. “If I had been offered counselling at the time, I think I would have been offended – but I would have got over that, and appreciated it at the end.”

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