Dear Lindsay

This is a legal perspective which I hope is helpful. It is possible 
that your organisation is in bariatric preparation mode...

Best wishes

Catherine Mackay

'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.

Contact: Paul Mander
Related services: Employment'



On Fri, 13 Jul 2012 14:03:02 +0100, Lindsey Hall wrote:
> Hi all, your thoughts appreciated.
>
> Electrical assembly client has male employee who is now 31 stone. He
> has just been suspended as he has broken his chair and has no other
> chair to sit on. He also can no longer do up his workshop coat. He 
> has
> a variety of health and personal problems for which I have seen him a
> few times. There have been capability issues in the past but recently
> I am assured that he does all he is asked to do in the time given to
> do it. I don't think they have quite made up a job for him but let's
> say he is given work to do that is within his capabilities - still, 
> it
> is work that needs to be done.
>
> Legal opinion has been sought by the employer regarding the 
> suspension
> and future options. Lawyer is advising provision of new uprated 
> chair,
> assessment of the old chair, bigger coat, referral to me, etc but has
> also started to advise on time off to lose weight and the employer is
> considering uprated chairs in the meeting rooms and an uprated
> disabled loo - not a pleasant image I assure you! Employer is small
> part of big multinational so the financial bar for reasonable
> adjustments would probably be pretty high.
>
> I am of the opinion that this is now very much a managerial issue but
> that some of the adjustments being considered are bordering on the
> unreasonable even for a big company. The chair that the employee 
> broke
> was already one bought specially for him when he exceeded 26 stone a
> couple of years ago. The coat that no longer fits was custom made
> about the same time. The employer has run health and fitness 
> campaigns
> in the past and I am about to help them with another. I have also
> provided plenty of lifestyle advice when seeing the person in 
> question
> and there have been many false starts with gyms, healthy eating etc
> that date back long before my time. My questions are therefore:
>
> 1) Has anyone else encountered a similar situation and what did
> you/the employer do about it?
>
> 2) When do reasonable adjustments put in place the first time round
> become unreasonable when being put in place the second or third time?
>
>
> Thanks
>
> Lindsey
>
> Lindsey Hall
>
> Independent Occupational Health Adviser
>
> Split Dimension Ltd
>
> 07771 596111
>
> Phone/Fax 01454 852715
>
> www.splitdimension.co.uk [1]
>
> _ follow us on twitter [2]_
>
> This electronic transmission is strictly confidential and intended
> solely for the addressee. If you are not the named addressee or think
> you may not be the intended recipient you must not use, disclose,
> distribute, copy, print or rely on the contents of this transmission
> and should destroy it immediately. If you have received this
> transmission in error, please notify me as soon as possible.
>
>  Please note that Split Dimension does not accept any responsibility
> for viruses and it is your responsibility to protect your computer
> systems against any possible viruses contained in this transmission
> and/or attachments.
>
> Split Dimension Ltd. Registered in England and Wales. No 5725582.
>
>      ******************************** Please remove this footer 
> before
> replying.
>
>  OCC-HEALTH ARCHIVES: http://www.jiscmail.ac.uk/lists/occ-health.html
> [3]
>
>  CONFERENCES AND STUDY DAYS:
> http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH [4]
>
> Links:
> ------
> [1] http://webmail.lumison.net/www.splitdimension.co.uk%20
> [2] http://twitter.com/#!/Splitdimension
> [3] http://www.jiscmail.ac.uk/lists/occ-health.html
> [4] http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH

********************************
Please remove this footer before replying.

OCC-HEALTH ARCHIVES:
http://www.jiscmail.ac.uk/lists/occ-health.html

CONFERENCES AND STUDY DAYS:
http://www.jiscmail.ac.uk/cgi-bin/filearea.cgi?LMGT1=OCC-HEALTH