Q Can we opt to employ a thin candidate rather than one who is overweight?
A Yes, provided there is no medical reason for the obesity.
Q How do you determine whether the obesity is a consequence of a medical condition and whether the candidate is disabled within the meaning of the Disability Discrimination Act?
A In the case of potential recruits, you should ask the applicant questions at the recruitment stage. Do they suffer from a disability? Is there anything about the job for which they would require support and, if so, what kind? If the applicant fails to give this information, then the employer can reasonably say it had no knowledge of the disability and could not be reasonably expected to know of it.
In the case of an existing employee, ask if there is any medical reason why there has been an increase in weight and/or why the employee is under-performing. For guidance, see paragraphs 5.12 to 5.16 of the Disability Rights Commission’s Code of Practice, which can be downloaded at www.drc-gb.org/thelaw/practice.asp
Q What can we do if an overweight employee is under-performing and the reason for that under-performance is the employee’s weight?
A First, check with the employee that there is no medical reason for their condition and then invoke the organisation’s capability procedure. At the initial interview, deal with the matter sensitively, but firmly indicate what the perceived problem is and what the employee is required to do to resolve it. Give the employee a reasonable period of time to demonstrate that they are able to lose weight. If possible, provide them with support or counselling.
Q Ultimately, can you dismiss someone who is under-performing because of their weight?
A Yes, provided they are genuinely under-performing for this reason, you have given them the opportunity to lose weight and there is no medical reason for the obesity. If there are not genuine reasons relating to capability, but you have simply taken a dislike to the employee because of their size, then any dismissal that relies on capability as the reason will be unfair.
Q What if there is no capability problem, but we feel the appearance of a grossly overweight employee creates the wrong impression to clients and, after giving the employee time to lose weight, which they do not do, we dismiss the employee?
A Technically, it would be possible to argue that the dismissal was for some other substantial reason of a kind to justify the dismissal.
However, there would have to be compelling evidence that appearance was essential to the image of the business and that the employee’s appearance was having a substantially detrimental effect and there was no other job they could do which did not involve client contact. Even then you are unlikely, on a practical level, to find that a tribunal will be sympathetic to your case.
Q Are there any human rights issues arising out of enquiring about an employee’s weight?
A Not if the questioning is to determine whether there is a medical reason relating to the weight increase, which may mean the employee is disabled for the purposes of the DDA.
Q Are sex discrimination claims possible in cases of obesity?
A Probably not yet. But there is growing statistical evidence to suggest that obese women are discriminated against to a greater degree than obese men in the labour market. For example, if an obese man was recruited in circumstances where a similarly qualified and experienced obese woman was not, the woman concerned could argue that the employer regarded it as less acceptable to employ a fat woman than it was to employ a fat man. This would be difficult to prove, but not impossible.
Did you know?
– A UK study in the Journal of Social Science and Medicine found that obese females are likely to be trapped in low-earning jobs by the time they are 30. It found that 70% of women who were overweight at 16 and 21 had working-class jobs at 30, compared to 40% of other women
– There is not yet reliable evidence to suggest that either sex is more likely to suffer obesity. However, if such evidence were to emerge, it is conceivable that indirect sex discrimination claims could be brought if a condition of employment adversely affected obese employees and it could be shown that a considerable proportion of men or women were unable to comply with it
– The US journal Health Economics reported that overweight workers were paid on average 2.5% less than workers of average weight. It also said that while all fat people suffered pay discrimination, in women it was prevalent when they were just 30lb
or 2 stone (13.6kg) overweight
– In the US, if obesity is caused by a physiological disorder, it qualifies as a disability under the Americans with Disabilities Act. In California, the ‘short and fat’ law gives a measure of protection to obese employees.