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Obesity in the workplace

Posted on by from RBS

What is the policy regarding obesity in the workplace? Nick Soret draws from a legal case last year that brought the issue to light on a global scale. Soret explains further.

Legal matters

In December 2014, the European Court of Justice (ECJ) ruled on a case that could have considerable ramifications for employers in the UK.

A Danish man called Karsten Kaltoft had worked as a childminder for a local authority for 15 years before being dismissed. His employer claimed that a fall in the number of children requiring care was the reason for this dismissal. Mr Kaltoft, who weighed 25 stone, said he’d been sacked because he was overweight.

A discrimination case resulted and the Danish Courts asked the ECJ for guidance on whether obesity could be classed as a disability.

The subsequent ECJ ruling said that obesity could be considered a disability if it “hinders the full and effective participation of that person in professional life on an equal basis with other workers.”

This therefore isn’t really about whether obesity itself is a disability or if the “condition” is self-inflicted. Instead, the focus is on whether it adversely affects an employee’s performance at work. If it does, then that worker could be entitled to disability protection.

What does this mean for the UK?

So what does this ruling mean for UK employers? In simple terms, they’ll have to avoid discriminating against employees whose weight may impact their ability to do their job.

And predictions suggest that this challenge isn’t going to go away anytime soon – Public Health England estimates that 60% of adult men and half of adult women will be affected by obesity in 2050.

Companies are now likely to have more of a vested interest in the health and lifestyle of their employees and the incentive to encourage people to keep fit will probably grow.

Many employers already offer various wellbeing schemes and activities like subsidised gym membership and it may be that we see more of these initiatives being put in place following the ECJ ruling.

Other ways in which a healthy culture can be encouraged include everything from bike-to-work schemes to bowls of fruit.

It’ll be interesting to see how far this kind of activity now goes. Will we see more fatty foods banned from work canteens? Or will vending machines with fizzy drinks be on their way out. Only time will tell but it isn’t beyond the realms of possibility.

There could well be other consequences of the ECJ ruling in the form of modifications which employees decide to make. For example, we might begin to see special seating or parking arrangements to accommodate people who are obese or overweight.

Approaching a sensitive subject

Ironically, these modifications may have the opposite effect to the one which is intended. After all, it could be argued that accommodating obese employees in this way suggest that the employees in question have no control over their weight, whereas changing their behaviour rather than their chairs might be more effective.

The ECJ ruling means employers interviewing for roles need to start thinking about extreme weight in the same way as they think about other disabilities and put measures in place to ensure they don’t discriminate against obese or overweight candidates.

Again, if a person’s weight might affect their ability to do the job, it’s likely that the candidate would qualify for protection under disability discrimination law. Therefore the onus would be on the employer to adjust the job to suit the worker.

At the same time however, companies also need to make sure they don’t make assumptions about job candidates based on their size and what they may or may not be able to do.

Any modifications that do have to be made to working environments in order to cater for someone’s size need to be made on a case by case basis and be “reasonable adjustments.”

It’ll therefore be vital to look at employees and their individual needs rather than adopting a blanket approach or blindly assuming that all overweight people need to be catered for in exactly the same way.

There’s no getting away from the fact that obesity and the workplace can be a sensitive subject. But employers will need to be aware of the impact of the ECJ ruling and take action where appropriate. Quite how this will manifest itself remains to be seen.

Nick Soret

By Nick Soret

Mentor & head of the Employment Law Consultancy Support at RBS.

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