Parker has 20 years’ experience as a bus driver but because her BMI was 34.1 and Translink in Belfast accepts recruits only with a BMI of less than 33, she was turned down.
There is no escaping the fact that obesity is an increasing problem in the UK, but where do employers draw the line between what is discrimination and what is a health and safety consideration when considering overweight employees as potential candidates?
Q Are there any circumstances where employers can legally discriminate against an employee or potential candidate on the grounds of obesity?
A Yes, and I suspect it happens frequently.
There is nothing to stop employers discriminating against candidates on obesity grounds. However, they need to ensure the discrimination is not on unlawful grounds, such as disability or sex discrimination or for aesthetic rather than health reasons.
Employers are not prevented from discriminating on obesity grounds alone. Crucially though, a person’s obesity may be linked to a condition that is a disability for the purposes of the Disability Discrimination Act 1995 (DDA), such as depression.
More controversially, it may even be that the effect of obesity on an individual would, in itself, satisfy the definition of disability under the DDA, although this is an issue that has yet to be tested and would depend on the facts as found.
It may still be possible to discriminate against that person, but such discrimination would have to satisfy the provisions of the DDA and consideration would also have to have been given to the possibility of making reasonable adjustments.
Q Can employers approach an employee who has gained a lot of weight if the aim is to help them lose it?
A This is more difficult. An employer in these circumstances has to decide that the issue is such that it needs to be raised. If it is, then it needs to be raised sensitively and proportionately. Otherwise the employer risks not only damaging the employment relationship but also a constructive dismissal claim and possibly a discrimination claim.
Q Can we offer free gym memberships to those with a BMI above, for example 27, which is considered overweight?
A My recommendation to an employer keen to tackle issues of obesity in the workplace would be to implement a well-researched programme. Employers could obtain advice and input from organisations such as the National Obesity Forum or the local Primary Care Trust. Free gym membership may be part of that strategy.
Q Are we obliged to provide specialist office equipment for overweight employees, such as larger chairs or work stations?
A Only if the condition of being overweight amounts to, or is a symptom of, a disability under the DDA. If it does then, as an employer, you have a duty to make reasonable adjustments to reduce the impact of the disability.
Q Can employers justify moving an overweight employee into a different role if there is a health and safety issue? For example, if a firefighter has problems climbing the ladder.
A Yes, subject to the duty to make reasonable adjustments and the need to deal with the issue in a proportionate way and with appropriate sympathy to ensure trust and confidence is not damaged.
Q Can employers for certain jobs stipulate in contracts that they reserve the right to take action if the employee becomes, in their view, too overweight to do the job they were hired to do?
A This may be possible if appropriate to the job and applied consistently and in a way that does not discriminate. In reality, however, I would fear all sorts of difficulties arising from such a policy and would not recommend it. For example what is “too overweight?” and who is to decide this?
Q How wise would it be for employers to state in advertising that a particular job is not suitable for an overweight, unfit person?
A Legally, care needs to be taken under the DDA. Also, such advertising may attract bad publicity – as in the Translink case – and narrow the field of applicants, so denying the employer the opportunity of recruiting the most suitable person.
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Short-listing criteria need to concentrate on essential skills/requirements for the post. The list of jobs needing someone who is not overweight would be a very short one indeed.
Mark Leach, employment partner at Weightmans
