Why employers should be aware how employees health can affect them

By Simon Rice-Birchall
Partner, Human Resources Group, Eversheds Leeds.

Telephone: 0845 498 4978

Email: simonricebirchall@eversheds.com

The reason?….. because one of their colleagues was sacked earlier this month for being overweight. After 22 years of service with the Fire Brigade, management decided that the fire fighter concerned was incapable of carrying out his duties.

The fire fighter’s union said that he could have been redeployed to another post.

Whilst the fire service faces the prospect of possible industrial action, should they also be concerned about the possibility of an Employment Tribunal claim from the fire fighter himself?

Whilst more and more research shows that prejudice against overweight and obese employees is prevalent within the UK, there is no discrimination legislation which directly protects such employees.

But what if an overweight or obese employee can prove that they have a “physical impairment which has a substantial and long term adverse impact on their ability to carry out normal day to day activities”, in other words, a disability under the Disability Discrimination Act 1995?

This is unchartered territory for UK discrimination law, but if such a condition does amount to a disability, the employee would qualify for protection in many different guises, from the way in which recruitment and promotion decisions are made through to the thorny issue of what “reasonable adjustments” could and should be made for the employee concerned.

Irrespective of the disability issue, employers still need to think about the implied terms which exist in the employment relationship, such as the duty of trust and confidence owed to an employee and the duty to provide a safe working environment.

If an employer is guilty of breaching such terms, this could lead to other legal issues and complaints.

For example, the employer who maintains an “unhealthy” working environment or ignores the bullying and harassment of overweight employees, could well face claims of constructive unfair dismissal, based on an allegation that the employer was in breach of contract for failing to protect employees and deal with the problems.

The prudent employer may wish to consider practical steps and be proactive in terms of educating its workforce about such issues.

Employers can also promote a healthy lifestyle amongst employees.

This can include reviewing any food and refreshments provided to staff, offering weight management programmes and assisting with gym membership or other physical pursuits.

As well as educating employees about obesity and helping employees to address such issues, a healthier workforce can also reduce absence levels, which would always be a welcome bonus for any employer.