Pies and Prejudice – Employers to Assist in the Battle of the Bulge

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 Britain’s addiction to unhealthy living.  The cost implications of obesity cannot be ignored or underestimated; the health service spent at least £1 billion treating obesity-related conditions last year alone.  Further, according to the most recent estimates, obesity is to blame for at least 18 million days of sick leave that are lost every year in the UK, which is costing the economy £2.6 billion.

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 UK which have introduced health programmes with work life balance coaching, speed pedometers for staff or free fresh fruit, all in an attempt to reduce waistlines and increase productivity.

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 US, groups such as the National Association to Advance Fat Acceptance and the American Obesity Association, have long been established to fight against the discrimination of overweight people.  Some cities and states in the US have passed laws outlawing discrimination on the grounds of weight and/or height, with such legislation commonly referred to as the “fat and short law”.  The likelihood of such legislation being implemented here is on the horizon with the Obesity Awareness and Solutions Trust (TOAST) heavily lobbying the Government to legislate against fattism. 

Whilst there is currently no such legislation in the UK, obese individuals could seek protection under a raft of legislation, including the following:

UNFAIR DISMISSAL

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.

Disability Discrimination

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. 

Harassment

Following the House of Lords decision in Majrowski v Guys and St Thomas Trust, employers can now be held vicariously liable under the Protection from Harassment Act 1997 for harassment suffered by workers in the course of their employment.  Under the Act, an obese individual could therefore bring a claim if they have been subjected to a course of conduct (more than one incident) which amounts to harassment of another and which the harasser knows or ought to know amounts to harassment. What amounts to harassment is a part subjective, part objective test: it would amount to harassment if a reasonable person in possession of the same information would think the course of conduct amounted to harassment.  A “harmless” fat joke said one too many times could therefore amount to harassment. The Act includes a remedy of “damages for any anxiety caused by the harassment and any financial loss resulting from the harassment”, and an employee will not have to prove any psychiatric or physical injury in order to claim compensation.

Sex Discrimination

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 Guildhall University has shown that obese women receive less pay than other women, whereas men who are obese do not suffer any such discrimination.  An obese female employee could therefore potentially bring a direct or indirect sex discrimination claim, if able to prove this.   Indirect discrimination is where a provision, criterion or practice is applied to both sexes but which puts one sex at a particular disadvantage and cannot be shown to be a proportionate means of meeting a legitimate aim. Arguably Fitness First was indirectly discriminating against women when it implemented a policy in 2003 (which was accidentally leaked to the press) whereby managers were told not to purchase size 16 uniforms due to added cost and the “impact of having large employees”. 

The Employment Equality (Age) Regulations 2006

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. 

Size matters

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 UK, obese employees can rely on existing statutory protections against unfair dismissal and discrimination on the grounds of sex, age, disability, race etc.   In order to minimise the risk of litigation, employers should try where possible, to assess whether there is an underlying medical reason for the obesity of any its staff members, and offer to help obese employees to lose weight.  Managers should ensure that obese employees are not subjected to harassment and bullying due to their size, and ensure that such issues are dealt with sensitively.  If an employee brings a grievance based on issues relating to their weight i.e. perceived harassment or bullying etc, the statutory and/or any contractual disciplinary dismissal procedures should be strictly adhered to.  With recent news reports that scientists may have discovered a genetic cause of obesity, dealing with such issues in the workplace could increasingly become a legal minefield.