The condition affects nearly a third of adults and isn’t classed as a disability, but as Kate Brown explains, firms can still be liable for discrimination claims if they don’t handle it properly
Around 30 per cent of adults in England are considered clinically obese. The effects of the condition are complex and can give rise to psychological problems as well as physical ailments and diseases. Studies have shown that obese people are around 25 per cent more likely to experience a mood disorder like depression. Similarly, there are well-documented correlations with obesity and other comorbid conditions such as Type 2 diabetes, high blood pressure, heart disease, cancer and strokes. In 2021, the Office for National Statistics reported that 10,780 hospital admissions were directly attributable to obesity, while just over one million admissions had obesity as a factor.
For employers, obesity can have a tangible impact on their business. This is especially true if an employee requires long or repeated periods away from work due to the condition or associated illness. The British Medical Journal has reported on studies that have found obese employees have more days of absenteeism: this can be costly for employers to manage, both in terms of having a reduced workforce and time spent managing the employee through an absence policy.
While obesity is not a protected characteristic under the Equality Act 2010 (EqA 2010), employment tribunals have recognised that its effects are capable of coming within the definition of disability, which is a protected characteristic. Under the first limb of the definition of disability, an individual must have a ‘physical or mental impairment’. This is taken to have its ordinary and natural meaning and isn’t further defined under statute.
The EqA 2010 guidance states that a claimant does not need to establish a medically diagnosed cause for their impairment: it is the effect that is considered and not the cause. With obesity, the effects can include tiredness, low mood, breathing difficulties and joint pain. It is easy to see how symptoms such as these may have a substantial and long-term adverse effect on an employee’s daily activities and hinder their full and effective participation in professional life. If these adverse effects are established, then an affected individual might be considered disabled.
If an obese employee does come within the definition, and an employer has knowledge of the condition, then they might be obliged to make reasonable adjustments. Employers should ideally consult with the individual, as well as occupational health to determine what those adjustments may be. Employers should also be mindful that actions or things said which treat an obese employee less favourably than other employees may give rise to a disability discrimination claim.
An employer is generally liable for the unlawful conduct of its employees towards others at work. If there is workplace bullying of an obese employee, the affected employee may have claims for harassment under EqA 2010, as well as civil and criminal causes of action under the Protection from Harassment Act 1997.
While obesity is a complex, multi-faceted and evolving area of law, there is a lot that employers can do to safeguard against legal claims, while creating an inclusive work environment for all. Ideally, employers should work to create trust with their employees so that they can communicate effectively and sensitively on this subject. Discussions with obese employees can be challenging due to the nature of the condition; weight is often tied up with self-esteem and a person’s sense of self. Employers should aim to deal with any issues delicately. They can also assist by bringing in health and mindfulness initiatives into the work environment, to encourage healthier, happier employees.
Kate Brown is a solicitor in the employment team at Thomas Mansfield. Her article was originally published by People Management on 22 April 2022 here.
To speak to us about your employment issues, whether to do with strategic business decisions or a particular issue involving an employee, get in touch with Kate Brown or another member of our Employment team on 020 7377 2829.