In the UK, obesity is estimated to affect one in every four adults and one in every five children aged 10-11. Obesity is becoming an increasingly common problem with the rise in consumption and availability of cheap, high-calorie foods combined with modern sedentary lifestyles and a lack of exercise. In 2018, the NHS saw an 18 per cent year-on-year rise in the number of patients admitted to NHS hospitals with obesity and related conditions. This trend is rapidly becoming a problem for employers to deal with too.
Is obesity a disability?
Case law, both domestic and international, has reached the same fundamental conclusion: obesity itself is not a disability. However, an obese person may be considered disabled if their resulting condition satisfies the requirements of the Equality Act 2010, with each case to be considered individually.
In Walker v Sita Information Networking Computing Ltd (2013), the Employment Appeal Tribunal upheld Mr Walker’s appeal and found that he was disabled. Mr Walker suffered from a myriad of symptoms including asthma, diabetes, anxiety and depression, in addition to obesity. It was held that obesity itself does not render a person disabled, though it may make it more likely that someone is disabled.
Unless a condition is a ‘deemed’ a disability, such as cancer, under the Equality Act a person is defined as having a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. It is the effect of the impairment rather than the cause which is the deciding factor.
Managing a disability in the workplace
Employers have a statutory requirement to look after the physical and mental health and safety of employees. Where an employee is disabled, the employer is under a legal duty to consider and make reasonable adjustments or modifications to remove any substantial disadvantage faced by that employee in the workplace compared with a non-disabled employee. As a result, it is important that employers take steps to better understand their employees’ health. This enables employers to identify where any potential adjustments need to be made. Using an HR medical specialist is one way for an employer to achieve this.
The HR medical specialist’s role is to work with both employers and employees to understand their health conditions. This ensures they are able to advise employers on how they can best support that employee at work, including suggesting reasonable adjustments. Examples of adjustments for an obese member of staff could include providing parking spaces closer to the workplace, providing bariatric equipment, or duties with reduced walking time. Flexible working may also be an option for obese staff whose mobility is impaired to such an extent that travel is problematic. HR medical specialists can also provide employers with an assessment on whether an individual has a disability and provide recommendations to help manage the individual at work and minimise absences.
Wellness checks are another way that an employer can minimise the risks of ill-health and the impact of absences on their business. They are simple, inexpensive tests which assess an individual’s key health risks, including diabetes and heart disease. This allows them to take control of their health before it affects their ability to work. For employers, the checks provide an insight into the health of their workforce, allowing them to spot trends and develop holistic wellbeing strategies to improve the overall health of their workforce, reducing absences and improving productivity.
Employers need to become more aware of the risks associated with obesity and have an enhanced awareness of obesity as an employment law issue. There are many practical and cost-effective steps that can be taken now to minimise the risks of disability discrimination claims in the future.
Pam Loch is founder and managing partner of Loch Associates Group