Plenty of people kick off the new year with a resolution to get fit and lose weight. However, for employers, it can be a year-round challenge to encourage employees to foster a healthy lifestyle, while also not creating a size-ist culture in the workplace. Katherine Maxwell, head of employment law at Moore Blatch LLP Solicitors takes a look at what employers need to know.
Obesity hit the headlines in December 2016 with a government sponsored report stating that one in three people are claiming benefits because they are too sick to work due conditions fuelled by obesity.
The report for the Department of Work and Pensions recommended that people who are in receipt of benefits due to obesity should attend sessions with a health advisor in a bid to get more claimants back into work. Furthermore, the author of the report, Professor Dame Carol Black, former National Director for Health and Work, suggested that job centres should refer those with a weight problem to slimming classes.
The report also called for an investigation into the extent to which long-term sickness and absence from work is being driven by Britain’s obesity crisis. Whilst this report targets benefit claimants, many of the same issues apply to employers. Studies show that obesity (and obesity related medical conditions) is a serious issue which costs UK business significant sums of money.
Obesity and employment law
While Dame Carol’s report has little to do with employment law, it did shine the light on the fact that the scope for discrimination on the basis of obesity is extremely complicated and highlights how obesity, unlike other disabilities, can promote responses that some may argue are not prejudicial. And here employers have a tricky line to tread.
From an employment law perspective, the issue is challenging; on one hand employers are being encouraged to foster a healthy lifestyle and diet and, on the other, having to be mindful of not creating a ‘size-ist’ culture within the workplace.
According to the European Court of Justice, employees aren’t protected from discrimination on the grounds of obesity, they are only protected from discrimination when their obesity is considered a disability.
Furthermore, several court cases in the UK and Europe have made clear that obesity itself is not a disability. Obesity is only considered a disability if it ‘hinders a person’s full and effective participation in professional life’. Those who have conditions that may be linked to their obesity – for example, asthma, diabetes and heart disease – are also considered disabled regardless of their obesity. Where obesity is such that an employee may be considered disabled, then the guidelines for discrimination are clear.
What can employers do to protect employees?
So how should a company handle difficult situations where an employee may not be classed disabled, but may be experiencing discrimination because of their weight? And how can they foster a culture to prevent this occurring in the first place?
For those not considered disabled, any bullying regarding someone’s weight should be treated by employers under a bullying and harassment policy. ACAS describes bullying and harassment as ‘any unwanted behaviour that makes someone feel intimidated, degraded, humiliated or offended.’ To prevent bullying or harassment its essential employers foster a workplace culture that is supportive and encourages employees to come forward and report bullying to their managers. Employers should also make it clear to all employees that harassment and bullying are not tolerated and that those found guilty will be disciplined.
Furthermore, ACAS specifically states that ‘employers need to ensure obese employees are not subjected to offensive comments or behaviour because of their weight.’
My experience as an employment lawyer is that employers want to do the right thing for their employees. As well as supporting employees who are obese, a growing number of businesses are also encouraging all staff to adopt a healthy diet and lifestyle.
This, however, presents a unique set of challenges; any policy towards a healthy diet and lifestyle must adopt a company-wide approach if it’s not to be perceived as unfairly targeting those who are an unhealthy weight.
Put it in writing
Having a structured and written policy enables the issues to be addressed formally: for example, ‘Mr Jones Manufactures is committed to promoting a healthy workforce’. This also allows the support available to be detailed, clearly outlining how employees can participate. Health and welfare policies could include anything from filling the vending machine with healthy drinks and snacks, to support with gym membership, to installing showers and encouraging employees to cycle or jog to work.
In trying to foster a workplace culture that promotes a healthy lifestyle there are many options for employers to consider, but as with all issues of this nature it’s a balancing act between supporting one group and possibly alienating another. Finding the right balance may not be easy, but doing so can provide ample benefits for employers and employees alike.
