According to the Department of Health’s latest predictions, more than 12 million adults and one million children will be clinically obese by 2010, if nothing is done to curb
As the UK has the highest obesity rate in Europe, and this growing trend shows no signs of abating, it is not surprising that the Government is now focusing its attention on how employers can help shoulder more responsibility in tackling the mounting obesity crisis.
The long awaited report by the National Institute of Clinical Excellence (NICE) is set to endorse guidelines for employers to adopt in promoting a healthier working environment, with proposals such as healthier food in office canteens, encouragement of staff to exercise during lunch breaks and more workplace showers (in case such lunchtime exertions make employees hot under the collar). Larger employers will be expected to install bike sheds, and all employers are to discourage staff from using the lifts in favour of using the stairs under radical proposals to try and get employees back into shape. There are already some businesses in the
Although such proposals will certainly garner criticisms from some corners of an ever-encroaching nanny state, we cannot ignore the health implications, and the need for change. From an employment context, surveys have shown that employers prefer to hire workers of a “normal weight”, as obese employees are deemed to be less productive. This raises the question as to whether obese employees should now be distinctly protected from discrimination, along the same lines that individuals are currently protected from being treated less favourably due to their sex, race, age, disability, sexual orientation and religion or belief. In the
Whilst there is currently no such legislation in the
The Employment Rights Act 1996 (ERA) contains the basic right for employees with one year of service or more not to be unfairly dismissed. If the principal reason for dismissal is the person’s size, an employer would have to show that the dismissal was fair because the person’s weight fell within one of the potentially fair reasons set out in s. 98 (1) and (2) ERA 1996, such as capability or conduct. However, it is difficult to envisage an example of where an employer could successfully argue that it had to dismiss an employee due to his/her size, save for industry specific exceptions such as an air steward, given the importance of body dimensions and the need to be able to walk up and down the aisle of an airplane. Understandably, most employers have been reluctant to dismiss someone on the grounds of their size, for fear of litigation. The Ronald Agnew case reinforced this fear, given that the 25-stone postman won a claim of unfair dismissal against the Royal Mail in January 2005, and was awarded £24,000 in compensation and was reinstated to his post.
Obesity is not expressly excluded from the ambit of the Disability Discrimination Act 1995 (DDA). Whilst it is unclear whether a diagnosis of obesity could amount to disability within the DDA, it is clear that the DDA will apply to obesity caused by an underlying medical condition if that condition constitutes a physical or mental impairment that has a substantial long term adverse affect on the employee’s ability to carry out normal day to day activities. Further, medical conditions arising from obesity such as depression, diabetes and heart disease may also be covered. Given the removal of the requirement that an impairment should arise from a clinically well recognised illness, it is arguable that obesity may also be a disability if it is caused by, or causes mental impairment such as depression, or an eating disorder which has a substantial and adverse long term affect on the employee’s day to day activities. Where an employee is obese and this amounts to a disability, they are entitled not to be treated less favourably because of their obesity or for an obesity related reason in comparison to someone in the same circumstances who is not disabled, and perhaps more importantly, their employer will be under a duty to make reasonable adjustments to accomodate the disability.
Following the House of Lords decision in Majrowski v Guys and
The Sex Discrimination Act (SDA) prohibits direct or indirect discrimination on the grounds of a person’s gender or married status, and applies to both men and women. Direct discrimination is where a woman (or man) is treated less favourably than a person of the opposite sex in comparable circumstances because of her (or his) sex. A study by the
Following the implementation of the age regulations, there is also a risk that if it can be shown that older employees are more likely statistically, to be obese than younger employees, and if they are treated adversely by the employer in any way, they could also potentially bring an indirect age discrimination claim.
Obesity is now high on the political agenda and if the US model is the sign of things to come, legislation prohibiting discrimination on a person’s size will be on the statute books sooner rather than later. Whilst there is currently no such legislation in the
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