As I write this, we’re still in the grips of the COVID-19 pandemic. We are told that obesity is a high risk factor in connection with COVID-19. In July 2020, Public Health England estimated that having a BMI of 35 to 40 could increase a person’s chances of dying from COVID-19 by 40%, while a BMI greater than 40 could increase the risk by 90%.

So, we know obesity is a health risk but is it also an employment risk?

Regarding obesity being an employment risk, I raise the following questions and give my comments on each question below.

1. Are obese employees (or candidates) disadvantaged when compared to employees who are not obese?
2. Whose responsibility is it – employer or employee?
3. Is there any special legal protection for obese employees?
4. If the answer to 3 is no then should there be?

Are obese or overweight employees currently treated less favourably?

The catalyst for writing this piece has been a report published by the Institute for Employment Studies (IES) which has found that women living with obesity are paid less than non-obese women. The IES Report says that female employees who are obese face a collective wage penalty of up to £10 billion per year, equivalent to an individual wage penalty of 13% compared with their female peers.

Leaving aside the pay findings, in my years as an employment lawyer, I have had a number of cases where employers have decided to reject a candidate who has been severely overweight. I was aware that obese candidates had less chance of being hired in the first place. I wasn’t aware of evidence of less favourable treatment once in employment. However, the IES Report states:

• Employees living with obesity who experience weight-based stigma have also reported feelings of isolation and shame, and have felt powerless to address the stigma as they lack collective forms of support for change. The potential lack of social support from managers and colleagues that employees living with obesity can experience has resulted in reduced wellbeing, increased stresses and maladaptive coping responses.
• Employees living with obesity may be more at risk when employee retention strategies are discussed, with evidence of discriminatory termination of employment occurring that were based on weight or perceived attractiveness and not performance or role-based evaluations. There is also a link between obesity and unemployment, with evidence suggesting that employees living with obesity could lead to higher unemployment outcomes.
• Weight-based stigma is evident at recruitment and selection, with evidence suggesting this occurs as a result of employers not understanding the causes of obesity, holding the stereotypical belief that those living with obesity are lazy, less conscientious and incompetent.

The IES findings therefore suggest that obese employees may suffer from a lack of support in some cases and also that they are:

• less likely to be hired in the first place;
• more at risk of dismissal (perhaps in a redundancy selection exercise).

What is obesity and how common is it?

Before commenting further on this aspect, it’s worth considering what we mean by the word obese. The NHS website links obesity to BMI and says:

For most adults, a BMI of:

• 18.5 to 24.9 means you’re a healthy weight
• 25 to 29.9 means you’re overweight
• 30 to 39.9 means you’re obese
• 40 or above means you’re severely obese

The term obese describes a person who’s very overweight, with a lot of body fat. It’s a common problem in the UK that’s estimated to affect around 1 in every 4 adults and around 1 in every 5 children aged 10 to 11.

The IES Report provides further information (which is rather startling) and says that:

• two-thirds of men are living with overweight or obesity and 6 out of 10 women are living with overweight or obesity;
• 1 in 4 men are living with obesity and 29 percent of women are living with obesity;
• forecast data up to 2024 suggests that, without intervention, obesity rates will continue to rise among the adult population; and
• if trends continue at their current rate by 2050, 60 percent of males and 50 percent of women will be living with obesity.

These figures surprised me but, on this basis, it’s a serious problem and one which every workforce will face without exception.

Is there special protection for obese employees?

Obesity does not have specific protection under employment law. It is not, for example, a protected characteristic under the Equality Act.

The Equality Act makes it unlawful to discriminate against a person in employment (and in other circumstances such as service providers). However, the Equality Act sets out the characteristics of a person which are protected and it is unlawful to discriminate on numerous grounds, i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Obesity is not a protected characteristic under the Equality Act.

It’s not as simple as this though because disability is protected. Disability under the Equality Act has a broad definition and is where a person has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

It has been argued in a number of cases that obesity can amount to a disability under the Equality Act or the European Equal Treatment Framework Directive (Directive). The Equality Act implements the Directive in England and Wales. Examples of cases include:

• The European Court of Justice in a case called Kaltoft held that obesity might be a disability under the Directive where it represents a limitation as the result of physical, mental or psychological impairments that hinder a person’s full and effective participation in professional life on an equal basis with other workers.
• A Northern Ireland Employment Tribunal relied on Kaltoft when deciding that an obese employee had been unlawfully harassed due to disability. The employee suffered from gout, knee and back pain, all related to his weight.
• The Employment Appeal Tribunal (pre-Kaltoft) held that obesity does not of itself render a claimant disabled. However, the effects of obesity might make it more likely that a person has impairments within the meaning of the Equality Act (such as diabetes or mobility issues). In this case, the obese employee suffered from numerous conditions either caused by (or perhaps contributing to) the obesity which had a substantial adverse effect on his private and working life.

The courts have been willing therefore to protect employees with obesity in certain circumstances. The problem for obese employees is that this is not specific and targeted protection. It is a possible protection but only if the obesity is such that it is causing conditions related to obesity which are having a long-term and substantial adverse effect on the person’s ability to carry out normal day to day activities. There is no protection for obese employees who do not meet the criteria for protection for disability under the Equality Act.

Should there be special protection at law for obese employees?

The IES clearly thinks that there should be and the IES Report says:

1. Employers should include obesity and overweight explicitly in equality, diversity and inclusion policies.
2. The Government must provide clear guidance to employers on the legal status of obesity discrimination in employment, and if obesity is not included as a protected characteristic under the Equalities Act [sic], then clearer guidance needs to be made to understand what obesity related conditions are in scope and what legal duties this implies for employers.

As far as point 2 is concerned, the position is already clear and obesity is not a protected characteristic under the Equality Act.

The problem with what the IES says is that it is difficult to say what obesity-related conditions will qualify as a disability. The definition of disability is purposely broad and the Equality Act will capture any condition which has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities. The Equality Act (and the Disability Discrimination Act 1996 before it) has only prescribed a handful of conditions as being deemed disabilities without considering the effect. Save for these few conditions, the focus is on the effect. An obese person who does not have a related condition which has the substantial and long-term adverse effect will not be considered disabled.

The IES advises that employers should include obesity and overweight explicitly in equality, diversity and inclusion policies. I don’t recall ever seeing an equality policy which covers overweight or obese employees. Equality policies tend to mirror the Equality Act. By contrast, bullying and harassment policies are often a lot broader and will cover bullying or harassment on any grounds (not just the protected characteristics). Including obesity in an equality policy would require a significant change by employers and would give obesity or overweight special status not afforded to other conditions.

I would be interested to know what people think of the suggestion that employers should provide written and specific protection to obese (or indeed overweight) employees to the same extent as they stipulate protection to, say, pregnant employees. Some people might suggest that employers would be better off trying to promote healthy lifestyles and offering assistance at the front end.

Whose problem is it and what can you do?

The cause or causes of obesity are well beyond me as an employment lawyer. It’s clearly a complex medical and psychological issue and not something I can comment on. The issue raises very different responses and polar opposite views (although this seems to be the cases with many issues these days).

I have heard the attitude from some employers that it’s the employee’s responsibility to deal with, suggesting that obesity is a lifestyle choice. The IES Report records that there is a popular perception that obesity is attributed to factors that individuals can control and that people could “eat less and do more”. An employer taking this approach is going to have a problem given the figures set out in this article. In any event, the issue of fault or cause is not relevant to the test of disability. Whether a person is disabled does not depend on how the condition has been caused or the extent to which the person may have contributed to the onset of the disability.

Better employers are doing more than ever to work with their employees to try and promote better health. This can be through education, facilities or access to good private health schemes which are not solely reactive. Gym memberships alone won’t cut it though and the issue needs more than this.

My view is that:

• The issues that arise from obese employees must be a shared issue for employers and employees.
• Better results will come from the employer and employee recognising the issue as a problem (or potential problem) and working together.
• Employers need to put this on to the agenda in a similar way to the way employers have in recent years come alive to the issue of mental health and have started to address this in a more understanding and proactive way.

I think good employers are getting better at helping employees look after themselves both mentally and physically. There will be a need for greater focus on this issue as the population gains weight. From the legal side, employment lawyers will see a greater demand for advisory work and, in all likelihood, an increase in claims.

If you would like to discuss anything raised in this blog please contact me.