In October 2009, the Size Acceptance Movement held a demonstration outside the offices of London mayor Boris Johnson, calling for the introduction of legislation outlawing workplace discrimination against the overweight.
The protesters were asking the mayor to support their campaign to persuade the government to follow the example set by San Francisco in the US, where ‘fattism’ is banned in housing and employment, and there is a law preventing doctors from putting pressure on patients to slim down. Similar laws exist in Michigan and Washington DC, and the campaign to “end weight discrimination and anti-fat bias” now has a profile on social networking website Facebook.
In relation to the employment sphere, the issue identified by these campaigns is certainly a real one. A survey carried out by Personnel Today in February 2007 found that a large majority of the 2,603 HR professionals questioned preferred to offer jobs to staff of a ‘normal weight’ than to obese employees where candidates are identically qualified. More than a quarter felt that obese workers negatively affected their corporate image, and almost half believed that obesity had a negative impact on employee productivity. In spite of this recognition of the problem, almost three-quarters of the respondents admitted that their organisation was doing nothing substantive to tackle the problem.
Lack of legislation
There is currently no formal legislation in place to protect overweight people. The existing discrimination legislation only protects the overweight where the obesity is caused by a disability for the purposes of the Disability Discrimination Act 1995 (DDA), and this will not change with the introduction of the Equality Act 2010.
In circumstances where the government is under significant pressure from public health professionals to take serious action in the face of what is a real and increasing health issue for society, there is unlikely to be any appetite for introducing so-called ‘anti-fattist’ laws in the near future.
However, employers clearly cannot simply ignore the problem and hope it will go away. The Healthy Weight, Healthy Lives government strategy paper published in 2008 indicated that almost two-thirds of adults are overweight or obese, and predicted that without clear action this figure would increase to almost nine in 10 adults by 2050.
The current trends are unlikely to be sustainable in the long term, not least because of the costs to the NHS (and therefore the taxpayer) of dealing with the health implications, particularly a probable rapid rise in Type 2 diabetes.
These are startling statistics and Dame Carol Black’s report, Working for a Healthier Tomorrow, made it clear that employers have an important role in promoting the health of the nation. As the Commercial Occupational Health Providers Association (COHPA) says in that report: “Employers are in a unique position of being able to educate, motivate and support their employees in understanding and actively maintaining their fitness and wellbeing.”
In addition, the Department of Health’s recent update to the 2008 strategy paper – Healthy Weight, Healthy Lives: Two Years On – promotes the Change4Life campaign that will use the workplace to “target overweight and obese employees by encouraging companies to promote healthy lifestyles.”
It is clear from research done by PricewaterhouseCoopers as part of Black’s report that there is much to be gained for employers in having a healthy workforce: less money lost to sickness absence, higher productivity, reduced staff turnover, increased employee satisfaction – and the list goes on.
Healthy steps for employers
One of Black’s key recommendations is that: “Government should work with employers and representative bodies to develop a robust model for measuring and reporting on the benefits of employer investment in health and wellbeing.”
Once we acknowledge that employers do have a part to play in what is a major public health issue, the question simply becomes one of extent. Many employers already offer regular health checks, subsidised gym membership and participation in the government’s ‘cycle to work’ scheme.
There are many other low-cost, simple steps that employers can take which are likely to be effective, such as putting signs up by the lifts reminding employees that it is healthier to take the stairs (and reminding them where the stairs are), providing fresh fruit rather than biscuits in kitchens, and subsidising and facilitating regular sporting activity for staff.
The question is, should employers be going further than this – and if so, how far? For example, if employers were to make annual health checks compulsory rather than an optional benefit, employees would be forced to face (if not address) health concerns, including weight issues, on a regular basis.
If they were to go one step further and link satisfactory health checks or the taking of action to resolve any health issues with the provision of remuneration or benefits, this would seem on the face of it to be toeing the government line.
However, it is not quite that simple. There would be potentially serious concerns about this sort of approach from a disability discrimination point of view – allowances would need to be made for any underlying conditions and employers would need to be extremely careful to ensure that employees who are disabled for the purposes of the DDA were not put at any sort of disadvantage.
In addition, employees (and unions, where relevant) are likely to take the view that many such provisions would constitute an unwarranted and unacceptable intrusion on their private life, particularly if their weight has no immediate or ascertainable impact on their performance at work.
Much would depend on the reasonableness of any demands made of the individual employees by the employer (encouraging staff to lose weight and offering assistance in doing so may be acceptable; basing remuneration or promotion decisions on a failure to do so is less likely to be appropriate).
However, for an individual who is in denial of their condition or unwilling to accept treatment or assistance, potential arguments about bullying or harassment by an employer could arise if the employee was sanctioned or penalised for failing to take appropriate action to lose weight, even when advised to do so by a doctor.
This all, of course, presupposes that obesity is a health issue about which individual employees can easily take action. It is not only the Size Acceptance Movement and other related campaign groups which would have us believe that this is often not the case.
The scientific consensus is that the continuing growth in the levels of obesity is not predominantly a matter of personal choice, but more the result of a so-called “obesogenic” environment – in other words, the world we live in allows and facilitates obesity. Which puts the pressure to take action squarely back on employers to provide an environment which encourages and facilitates weight loss and a healthy lifestyle.
While we are unlikely to see anti-fattist legislation on the statute books any time soon, this is clearly an issue which is going to grow and grow. Employers need to ensure they are acting appropriately while remaining cautious about how far they push their efforts to slim down their workforce.
Beth Hale is an associate lawyer at Stephenson Harwood. To contact her, e-mail: Beth.firstname.lastname@example.org or telephone: 020 7329 4422.