The post-Christmas and New Year period is always a time for resolutions to lose weight and get fitter and healthier. But employees often lack the motivation to keep their promises, and may suffer post-Christmas blues as a result.
Obesity can lead to increased levels of absence, reduced productivity, and even bullying and harassment. So this time of year is an ideal opportunity to consider a proactive approach to help the entire workforce and tackle obesity head on.
Q Do we have an obligation to help make our workforce healthier?
A While there is no specific legal obligation to improve the health of your workforce, it is in everyone’s best interests to have healthy and, of course, happy employees. Consider offering subsidised gym membership and weight loss and healthy eating advice. You could also encourage team-building sports, and include healthy and low-fat foods in vending machines and on the menu in the staff canteen. Initiatives such as installing bike sheds and showers to encourage employees to walk, run or cycle to work, and to use the stairs, not the lift, should also be considered.
Q Can we choose not to employ obese candidates due to their weight?
A Provided there is no medical reason for the obesity, in short, you can choose not to employ an overweight candidate. However, this is not entirely without risk. As a minimum, you should be asking all candidates during the recruitment process whether they suffer from a disability, and whether they would need support or assistance should they be employed. This way, you will be able to make an informed decision before you act.
Q Can we use obesity as a reason for dismissal?
A There is no specific protection against ‘fattism’ as opposed to other forms of workplace discrimination such as sex or race. It would be dangerous for you to consider simply dismissing someone because of their weight. An employment tribunal would be unlikely to view the decision as fair in all the circumstances unless it clearly had a detrimental impact on the business. If the overweight employee is under-performing due to their excess weight, then, again provided there is no medical reason for the obesity, you should take the employee through your capability procedure.
It’s important to deal with the issue with sensitivity and clearly state what the problem is, the effect of that problem, and what the employee should do to resolve it. You should provide them with as much support and guidance as necessary. It may be that you set a timescale for the employee to demonstrate weight loss. However, you must be clear that the reasons for encouraging them to lose weight are objectively justifiable and relate to their capability to do the job.
Q Is obesity a disability under the Disability Discrimination Act 1995 (DDA)?
A An employee suffering from obesity would not currently be protected under the DDA. However, if the cause of the obesity is as a result of a disability, such as clinical depression, diabetes or arthritis, they may be protected under the DDA. It is important to note that addiction to alcohol alone, which may well be an underlying cause of obesity, is not a disability for the purposes of the DDA.
Q How do we deal with an employee who has recently had time off work following an operation to have their stomach stapled and has subsequently had frequent recurring absences?
A You should deal with the employee’s absences in much the same way as any employee returning from sickness absence. Any persistent short-term absences must be managed accordingly. But first, it is integral to have a comprehensive policy to cover ill health absences, both short- and long-term, such as these. You must ascertain as early as possible the reason for the absences and deal with them sensitively, but promptly.
Q We suspect that one of our employees, who is overweight, has an alcohol problem. What should we do?
A Alcoholism is a serious illness and should be treated as such, rather than as a disciplinary issue. Once you have established with certainty that the employee has an alcohol problem, you should encourage and support them in the same way as you would any other employee who is suffering from an illness.
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You will have to seek medical advice as to whether the employee’s weight problem has been caused by the alcoholism as it may be unrelated. It is also important that the employee in question takes appropriate steps to help themselves with your support, and that you develop an appropriate policy to deal with dependency on alcohol/drugs.
By Stephen Robinson, associate, DWF Solicitors
