“According to the Department of Health, 18 million working days are lost due to obesity-related health problems every year in the UK,” says Jennifer Eady QC, head of employment at Old Square Chambers.
Obesity in the workplace is becoming a major issue. Recent research among 22,000 people by workplace health consultancy Vielife revealed that 48% of UK employees have excess body weight, and 14% are considered clinically obese.
Workers who are classified as obese report significantly less productivity than those who are not, and report nearly twice as much sickness absence than employees with normal body weight profiles.
Clive Pinder, managing director of Vielife, says: “We know that employers currently differentiate and select people based on intelligence, emotional intelligence and psychometrics. Therefore it is not unreasonable, given that research proves there is a direct correlation between health and performance, for employers to begin to differentiate based on health.”
To a great extent, employers’ reluctance to do so to date has been driven by fear of litigation. Most have heard the story of Ronald Agnew, the 25-stone postman who won a claim of unfair dismissal in January 2005, and was awarded £24,000 compensation and reinstated to his post. Many employers do not wish to suffer a similar fate, and so tend to ignore the issue.
Indeed, employers need to tread carefully in this area. There is no specific employment law in England and Wales which directly addresses discrimination against obesity. However, some elements of existing legislation can be used by overweight staff to claim that they have been victims of ‘fattism’.
Vicky Bennett, head of employment at law firm Heatons, says: “Under the Disability Discrimination Act (DDA) of 1995, if a person’s obesity has lasted at least 12 months and substantially adversely affects his ability to perform everyday activities, then it could be classed as a disability.
“Also, if a person is depressed and they are classed as disabled within the DDA and one of their symptoms is overeating, which has caused them to become overweight, then their weight could be a “reason related to their disability”, and employers who discriminate would fall foul of the law.”
However, Stephen Robinson of law firm DWF argues that the situation is slightly more nuanced than that. “You can choose not to employ an overweight candidate, provided there is no underlying medical reason for it, although you should take the precaution of asking all candidates as part of the application process whether they suffer from a disability, and whether they would need support or assistance should they be employed,” he says. “If you fail to ask these questions, there is a risk that in not employing that candidate, you may be inadvertently discriminating against them.”
Robinson adds that it would also be dangerous to dismiss someone because of their weight unless it had a clear, detrimental impact on the business.
For most employers, however, the preferred method of tackling obesity is to encourage a healthier lifestyle among all their employees. They might offer free fruit and subsidised low-fat meals in the staff restaurant. They might encourage flexible working and provide subsidised gym membership. In some cases, workers might also be given coaching and counselling to help tackle the root causes of the weight problem.
In the coming months, we may see more of them not only offering this kind of assistance to existing staff, but also increasingly choosing not to employ people who are overweight.