Obesity: bad for the bottom line?

Posted: 07/02/2012

Paul Mander, joint head of Penningtons' employment team, has contributed to an article in the latest issue of People Management magazine on how obesity has become an issue which employers cannot afford to ignore.

The feature, entitled 'Obesity: bad for the bottom line?' highlights the fact that there is significant evidence to suggest that employers may discriminate against the obese and regard them as less productive than other employees. It also emphasises the importance of avoiding  generalisations and moralising and considers how to promote a healthy workplace culture.

Paul Mander has provided the following Q&A piece as part of the feature:

Is obesity an employment law issue?

Not so much on the grounds of obesity itself, but it can be if connected with capability. For example, if you’re airline cabin crew and you are too large to get down the aisle, in that circumstance it could be lawful to discriminate because it’s a necessary requirement to do the job.

The legal aspects are mainly threefold: one is the potential sex discrimination angle – people can be less tolerant of obese women than of obese men. Two is “mutual trust and confidence”, the term implied in every contract of employment, which covers a general respect for staff within the workplace, and can lead to constructive dismissal claims. The other issue is if the person is suffering from a disability, and so is covered by the Equality Act 2010, which has subsumed the Disability Discrimination Act – and a lot of seriously overweight individuals tend to have disabilities that are either a symptom of the obesity or the cause of it.

Is obesity itself a disability?

According to the Equality Act, obesity of itself is not a disability. But it could be a result or cause of a disability. Somebody who is a depressive may eat too much – in which case depression is the disability. Respiratory trouble is a disability – and it can be caused by obesity. You’d be a pretty brave employer to say that obesity is definitely not a disability.

Do employers need to make special adjustments and provisions for obese workers?

Strictly speaking, no. There is a general duty for employers to make reasonable efforts to make sure people’s health and safety is preserved. By law you also have to make reasonable adjustments to accommodate a disability. But while obesity is not necessarily a disability, if somebody is morbidly obese you may be wise as an employer to assume that a disability underlies it.

Does the law look likely to change its stance on obesity?

Already, in the US, some municipalities in California have anti-fat (and height) discrimination laws – it’s a progressive state in terms of employment rights. You could say that this is the way the issue may go, but in fact there have still been no decided cases in the UK on the grounds of obesity alone – which is very surprising. So if the law is to change, it doesn’t look like doing so any time soon.

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