We are a medium/large distribution company and employ a number of staff in our warehouse. One employee is, by his own admission, clinically obese. He has had a number of short-term absences, but recently reported that he now has difficulties with mobility and cannot climb ladders – an important part of his role. He also complains that a number of fellow colleagues are making fun of his weight. What can we do?
While there is no specific legislation that offers protection based purely on weight, it is possible for obese employees to obtain protection from existing legislation arising out of claims for unfair and constructive dismissal – the Disability Discrimination Act 1995 (DDA) and/or the Protection from Harassment Act 1997.
Where an employee’s obesity prevents them from fulfilling their normal duties in the workplace, they may be able to rely on the protection afforded to them by the DDA. Obesity may mean employees are predisposed to higher risks of associated diseases, such as diabetes, high blood pressure, depression, certain cancers and osteoarthritis.
Obesity should be treated no differently from any other health condition. Get an occupational health report, where appropriate, and apply the normal capability procedures.
Consider role adjustments that will help your employee, and implement them. This may involve identifying alternative employment in another role, depending on the circumstances. Failure to deal with this situation correctly could potentially lead to an uncapped compensation award.
Regardless of whether your employee has submitted a written grievance, action should be taken to prevent him from suffering further humiliation by his work colleagues. Where a written grievance has been received, then at the very least, the statutory procedures should be applied.
Such behaviour may also be in breach of your company’s dignity at work policy and, following in the vein of the much publicised cases of ‘gingerism in the workplace’, may lead to a constructive dismissal claim. It is, therefore, important not to simply ignore those complaints, but take a proactive approach to avoid potential risks.
Philip Pepper, associate, Weightmans