Articles by McGrigors
08 March 2005
Getting to grips with a weighty issue
by Murray McCall
(Published The Scotsman)
We are bombarded by reports about the obesity "time bomb" and the latest "miracle" diets or pills to help us achieve the perfect figure. Our nation is getting fatter and unhealthier and this raises major issues for employers.
Last month a British soldier was awarded £171,000 in damages from the Army after he was subjected to a number of insensitive and racist jibes, including "fat hairy bear".
Recently, an American boss, who had previously told staff to stop smoking, ordered them to lose weight or lose their jobs, with the remark: "I’m not controlling their lives. They have a choice whether they want to work here."
A small number of areas in the US have dealt with weight discrimination, providing legal protection. There is no specific UK legislation that prohibits discrimination against overweight employees - but employers should be wary of indirect discrimination.
In the 1980s, US flight attendants claimed successfully against employers under sex discrimination laws, because weight requirements were only applied to women.
In the UK, any rules, particularly related to weight and appearance, which only apply to women will fall foul of the Sex Discrimination Act 1975.
A more likely route for UK litigation is through the Disability Discrimination Act 1995, which prohibits discrimination against someone who has "a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities". Where obesity or weight gain is caused by a medical condition, it may be caught by the DDA. Employers should be cautious if they consider dismissing overweight employees on grounds of ill-health.
What is not clear is whether a diagnosis of obesity in itself can constitute a disability. Obesity can impair someone’s mobility, physical co-ordination and ability to move everyday objects.
If this is the case, the person may qualify as disabled within the DDA - and not only would direct discrimination be prohibited, but an employer would also be obliged to make reasonable adjustments to accommodate that person.
Another risk is constructive dismissal claims from employees bullied in the workplace because of their weight. Prudent employers should treat alleged victims sensitively and inform staff that bullying of any kind is not acceptable.
Murray McCall is an Associate with McGrigors, Glasgow.
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