Our children are the future workforce and so the recent findings by a clinical nutritionist at the University of Nottingham about childhood obesity are a concern employers cannot ignore. Contributors Pam Loch, Managing Partner – Loch Employment Law, and Bruce Jenner, Director – Loch Health.

The research identified that more than 50% of parents fail to recognise that their children may be seriously overweight – and many health professionals are failing to do so too. With 25% of the UK population currently classified as obese, a significant proportion of the future workforce could require adaptations to their working environments.

It is not, however, a new challenge for employers. The European Court of Justice considered whether obesity should be classified as a disability as early as 2014. A Danish childminder, Mr Kaltfoft brought a discrimination case against his employer, claiming he was dismissed because he was obese, and his obesity was a disability.  

The Advocat General in this case stated that whilst obesity in itself is “insufficient to fulfil the criteria in the Court’s case-law on ‘disability’”, if it “plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability”. As a result, it is up to national courts to decide in each case.

What is the UK position?
A person is disabled under the UK’s Equality Act 2010, if they have a physical or mental impairment that has a substantial and long-term adverse effect on the person’s ability to do normal daily activities. 

It is well established that physical and mental conditions arising from obesity can be a disability. In Walker v Sita Information Networking Computing Ltd in 2013, the Employment Appeal Tribunal (EAT) had to determine whether the Employment Tribunal (ET) was right to decide that an obese employee was not disabled because there was no identifiable cause for the number of different medical conditions from which he suffered. 

Mr Walker weighed 21.5 stone and suffered from sixteen medical conditions including depression, compounded by obesity. Sita accepted that all of Mr Walker’s symptoms were genuine but argued the disability claim should be rejected because he was not disabled. The EAT overturned the earlier dismissal of the claim, saying “it is important to consider the effect of an impairment, not its cause”.  

Mental health and obesity
This case also highlighted the connection between obesity and mental health that employers need to consider. Research undertaken by the NHS  has shown a close correlation between obesity and depression, and the mental health of women is more closely affected by obesity than men. So the impact of obesity could have a knock on effect on productivity and absences from work. 

A mental health condition may also be considered a disability, if it meets the requirements of being a long-term condition capable of lasting more than two months or if it could reoccur. To complicate things, another research revealed the prevalence of obesity and depression going hand-in-hand in children, with the link between the two gradually increasing throughout childhood. 

Given the connection between obesity and mental health, making uniformed decisions regarding an employee can be problematic and could put an employer’s business at a significant risk of claims.  

What does this mean for employers?
An employer’s potential liability starts when the recruitment process begins. Not selecting an employee because they are obese could give the candidate grounds to bring a discrimination claim. 

The bigger risk is when an employee is recruited, and other issues arise. In the workplace, what some see as harmless banter could expose employers and the individual to discrimination claims. This was considered in Evans v Xactly in 2018. The EAT appears to be allowing the use of discriminatory language after upholding the ET’s decision that Mr Evans (who suffered from type-1 diabetes and an underactive thyroid, which he blamed for weight gain) was discriminated against after being called a “fat ginger pikey”. However, the EAT heard evidence that this banter was typical in the high-pressure environment of a sales team and the Claimant had also participated in that banter before without issue. 

One of the critical points here was that there was no evidence put forward linking his body weight and his disability, which means that whilst the language had the potential to be discriminatory, in this case it wasn’t found to be. Roll this forward a few years from now, and we believe the position will be different.   

What should employers be doing to protect themselves from claims
Understanding an employee’s physical and mental health can be difficult and time consuming. But it is important as it can help employers to comply with their obligations under the Equality act 2010 and to ensure they are fulfilling their duty of care to their employee. If you do have an employee who has a condition in addition to being obese you are clearly under an obligation to make and consider reasonable adjustments.  

HR Medical Specialists can have difficult conversations with employees to understand their condition and provide reports to employers on how they can best support that employee at work, including any reasonable adjustments that could be considered. The HR Medical Specialist can also provide employers with an assessment on whether an individual has a disability. 

Even if an employer has not been given a formal notification of an employee’s disability, there may be clues or other evidence which gives them “constructive knowledge” of a disability.  If, based on this evidence, an employer could reasonably be expected to know about a disability, even if they have not been explicitly notified of it, then this triggers the obligation to consider and make reasonable adjustments in accordance with the Equality Act 2010.   

Examples of adjustments could include providing parking spaces closer to the workplace, providing bariatric equipment, or duties with reduced walking or travelling time. Flexible working may also be an option for obese staff whose mobility is impaired to such an extent that travel is problematic. 

Employers also need to consider how their policies and procedures can help support obese employees and reduce the risk of discrimination occurring. Although obesity is not yet a protected characteristic under UK legislation, employers could choose to expressly reference obesity as a characteristic they wish to protect under their Equality and Diversity policy. 

An Anti-harassment and Bullying policy could include specific references to obesity and the language and behaviour you expect from staff towards obese colleagues. Social media policies should also include examples of how to behave and not use specific language about obese employees.  

All staff should be provided with training on Diversity and Inclusion. This could be extended to cover issues around obesity so people are aware of how their behaviour and language could lead to claims of harassment and discrimination.

Devising an obesity management plan would be the most beneficial solution employers could put in place. As well as practical steps, such as a plan to evacuate employees with mobility issues in an emergency, this plan may look at workplace design, healthy food options in the canteen and other general wellbeing initiatives. Employers can use this as an opportunity to engage with staff through a staff survey to find out what other options they would welcome.  

Employers can also help employees take proactive steps to manage their health before it becomes an issue by providing Wellness Checks. These checks can identify signs of conditions such as diabetes allowing employees to make changes which reduce their health risk. This is obviously of benefit to the employee, but employers benefit from a healthier workforce and a lower risk of disabilities becoming an issue they need to manage.  

Whatever additional measures you choose to implement, having an awareness of obesity as an employment law issue will enable employers to be forearmed to deal with obese employees should the need arise. Being aware and taking practical steps to ensure your processes and policies are up to date and effectively implemented as a starting point should help employers prevent claims being raised and provide the foundation upon which to successfully defend them.