Tackling a Big issue

Fat is becoming an increasingly weighty issue for all employers, according to Eilidh Wiseman, head of the employment group at major UK commercial law firm Dundas & Wilson.

It is estimated that over 18 million working days are lost every year due directly or indirectly to obesity - where business is concerned, overweight employees are no laughing matter.

With more than one in two Brits now overweight, and one in five classed as obese, the fat issue in UK offices is not about to go away ñ and employers are being warned to make sure they are equipped to deal with it.

In San Francisco, legislation is in place banning discrimination on grounds of height or weight ñ known as the ëshort and fat lawí ñ and Italy has also recently introduced similar laws.

In the UK, ëfatí jokes, or any other kind of size-related discrimination in the workplace, can lead to employers finding themselves in hot water under the Disability Discrimination Act 1995.

Mrs Wiseman says: ìThis is a very sensitive issue for many people and employers have to approach it with caution.

ìOverweight people are often seen as lazy with no willpower or desire to put any real effort into their job, and clearly this is not an attitude employers can afford to adopt.

ìAlthough there is currently no explicit legislation which covers discrimination against overweight workers in the UK, the Disability Discrimination Act 1995 can be applied in certain circumstances, which is when managers can find themselves having to answer to an employment tribunal.î

A person is defined as having a disability under the Act if ëhe or she has a physical or mental impairment that has a substantial and long term adverse effect on his or her ability to carry out normal day-to-day activities.í
The Act does take into account how far a person can realistically be expected to modify their behaviour, i.e. lose weight; however, not all of the onus is on the employers. If an overweight worker can reasonably be expected to take action to improve their condition they will not be defined as disabled for the purposes of the Act.

In practice, this means that in the absence of a medical reason for the obesity, an employer could simply advise the employee to go on a diet and take some exercise.
Also, if an employee becomes fat over a period of time and is then unable to do his or her job, they can potentially be fairly dismissed on capability grounds. If the matter was then brought to employment tribunal, the tribunal would look at whether the employer had given the employee a reasonable opportunity to lose weight, and warned them that failure to do so would put their job at risk.

Itís in circumstances where a person is too fat to perform their job effectively that employers must tread carefully, according to Mrs Wiseman.

Not all people with weight problems eat too much ñ an over-active thyroid gland can cause vast weight gains, for example.

Mrs Wiseman says: ìObesity can contribute to all kinds of health problems, from diabetes to cancer, and employers really need to take this into account when faced with a very overweight member of staffî.

ìWhere a medical reason exists for obesity, employers must be aware that the Disability Discrimination Act 1995 can apply and support and help should therefore be offered to the employee to overcome his or her problem.

ìOf course, if the worker in question can realistically take steps to improve their physical condition then it is reasonable for an employer to expect them to do so.î

Employers should also be aware of proposed changes to the Act with regard to mental illness. At the moment, the Act specifically covers employees with a mental impairment provided it is ìclinically well-recognisedî.

The necessity for the impairment to be ìclinically well-recognisedî is to be removed under a new Bill which is expected to come into force in 2006. This may mean that people suffering from stress can qualify as being disabled, which could directly affect an employee who is off work with stress due to weight issues or their treatment at work because of their weight. Although this change will not take place until 2006 at the earliest, employers should be aware of the possible ramifications now.

Mrs Wiseman adds: ìThere is a lot to be considered when an employer has to deal with an employee who is overweight to the point where it interferes with their work.

ìWhether itís tackling problems posed by the conditions of an existing employee or appointing someone to a new post, the main consideration should always be a personís ability to do their job ñ not their size.î

Issued by the BIG partnership on behalf of Dundas & Wilson.

For further information please contact:

Marjorie Calder 0141 333 9585
Bryan Garvie 0141 333 9585